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COURTNEY HUDSON GOODSON, Associate Justice
Appellants/cross appellees Arkansas State Plant Board and Terry Walker, in his official capacity as the director of the Arkansas State Plant Board (the Board), appeal the Pulaski County Circuit Court's April 3, 2018 order declaring that the Board's April 15, 2018, dicamba cutoff rule is "void ab initio," and "null and void." Appellees/cross appellants, who are farmers Michael McCarty, Perry Galloway, Matt Smith, Greg Hart, Ross Bell, and Becton Bell (the Farmers), appeal the same order's dismissing with prejudice their first amended complaint on the basis of the Board's sovereign immunity. We dismiss the direct appeal as moot and dismiss as moot in part and reverse in part on cross appeal, and remand for further proceedings.
I. Background
The Board approves and regulates herbicides that Arkansas farmers may use to combat invasive plant species. Arkansas row crop farmers struggle with competition from Palmer amaranth, which is commonly known as pigweed. Over the years, pigweed has developed a resistance to traditional herbicides. Dicamba-based herbicides effectively control pigweed but may only be used on plants grown from seed produced specifically to resist dicamba.
Dicamba is highly volatile, meaning that it has a tendency to evaporate and fall off-target and damage other plants that are not dicamba resistant. Dicamba was not approved for in-crop application in 2016. In 2017, the Board approved the use of what were believed to be less volatile formulations of dicamba-based herbicides for in-crop application. However, in 2017, the Board began investigating an unprecedented number of complaints of off-target dicamba herbicide injury. There was some dispute as to whether the improved dicamba-based herbicides were properly applied, or even if other dicamba-based herbicides were used. The Board therefore appointed a "Dicamba Task Force" to address the increased number of complaints and to propose rules for the use of dicamba by Arkansas farmers for the 2018 crop year. Pursuant to the task force's recommendations, the Board proposed a new rule that would prohibit the use of dicamba from April 16 through October 31 of each year.
The Farmers used dicamba-based herbicide in 2017 and wished to use herbicide formulations containing dicamba in 2018. On September 29, 2017, the Farmers filed a petition for rulemaking. In their petition, the Farmers sought (1) the implementation of a May 25 cutoff date for dicamba application, (2) a requirement that there be a one-mile buffer between a dicamba application and any growing crop that is susceptible to dicamba injury, unless the applicator receives a written waiver for the application, (3) the creation of a special application permit for the growing season use of dicamba in circumstances of severe pigweed infestation; and (4) the instatement of a requirement that any individual or entity applying dicamba after April 15 must carry a mandatory liability insurance policy in the amount of $ 500,000. The Board denied the petition on October 19, 2017.
On November 9, 2017, the Board voted to ban the in-crop use of dicamba-based herbicides after April 15, 2018. On November 10, 2017, the Farmers filed suit in the Pulaski County Circuit Court seeking declaratory and injunctive relief and judicial review of administrative acts. The Farmers subsequently filed an amended complaint alleging that (1) Arkansas Code Annotated § 2-16-206 is an unconstitutional delegation of legislative appointment power to private industry, (2) Board members violated Arkansas Code Annotated § 25-15-209(a) by having unannounced meetings and communicating with third parties about the proposed dicamba ban, (3) the Board's refusal to initiate rule-making as requested in their petition and the Board's proposed April cutoff date were arbitrary and capricious, and (4) third-party contacts and procedural irregularities provided grounds for them to conduct discovery and present additional evidence to the trial court.
On January 19, 2018, the Arkansas Legislative Council approved the rule prohibiting dicamba usage from April 16 through October 31, and the new rule took effect ten days later. On February 15, 2018, the Board filed a motion to dismiss the Farmers' amended complaint, arguing that (1) the Farmers lacked standing, (2) the Farmers' claims were not ripe, (3) the Farmers failed to perfect service of process on the Board, and (4) the Farmers' claims were barred by sovereign immunity. Notably, the Board conceded that Andrews did not "explicitly or implicitly overrule the line of cases that allow lawsuits for injunctive relief where a state official or agency is acting unlawfully, unconstitutionally, or otherwise outside the scope of his/its authority (ultra vires)." See Bd. of Trs. of Univ. of Ark. v. Andrews , 2018 Ark. 12, 535 S.W.3d 616. However, the Board argued that the Farmers' complaint failed to allege sufficient facts to plead any unlawful or unconstitutional violation. The circuit court granted the Board's motion to dismiss on the basis of the asserted sovereign immunity defense. The circuit court dismissed with prejudice the Farmers' constitutional claims regarding the selection and procedures of the Board. The circuit court also determined that the Farmers alleged no facts with respect to their administrative rulemaking appeal that would establish an exception to sovereign immunity. The circuit court then determined that the Board's sovereign immunity resulted in a violation of the Farmers' due process rights, because the Farmers lacked any way to challenge the Board's actions. Therefore, on April 3, 2018, the circuit court ruled that the Board's rule was "void ab initio" and "null and void" as to the Farmers. The Board filed a notice of appeal as to the finding that the Board's rule was "void ab initio," and "null and void." The Farmers filed a cross appeal in which they appealed the circuit court's with prejudice dismissal of their complaint and the dismissal with prejudice of their allegations of constitutional violations.
II. Standard of Review
In reviewing a circuit court's decision on a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. Hodges v. Lamora , 337 Ark. 470, 989 S.W.2d 530 (1999). Furthermore, we look only to the allegations in the complaint and not to matters outside the complaint. Id. However, we treat only the facts alleged in the complaint as true but not a plaintiff's theories, speculation, or statutory interpretation. Id.
III. Direct Appeal
The Board appealed that portion of the circuit court's order declaring void and without effect the Board's rule establishing the April 2018 cutoff date for the in-crop application of dicamba herbicides. We have consistently held that we will not review issues that are moot because to do so would be to render an advisory opinion. Keep our Dollars in Independence Cty. v. Mitchell , 2017 Ark. 154, 518 S.W.3d 64. A case generally becomes moot when any judgment rendered would have no practical effect on a then existing legal controversy. Id. When a challenged statute is amended or repealed so as to eliminate the controversy between the parties while the appeal is pending, the appeal is rendered moot. Ark. St. Plant Bd. v. Bell , 2019 Ark. 164, 2019 WL 2223441. These mootness principles equally extend to agency regulations that are repealed while an appeal is pending. Id.
While this appeal was pending, the Board promulgated a new rule that repealed the April 15 cutoff date. The new rule took effect March 9, 2019, and in-crop dicamba application is now allowed through May 25 of each year. Ark. Code R. 209.02.4-XIII(B)(1)-(2). We may take judicial notice of this new rule. Bell , 2019 Ark. 164. As a threshold matter, we must determine whether the Board's appeal is moot in light of the new rule.
The Farmers alleged in their complaint that if they were not allowed to use dicamba herbicides after the April cutoff date, they would suffer actual injury to their crops as well as financial injury. In its order, the circuit court ruled that
[t]he State Plant Board Rule establishing an April 16, 2018, cutoff date for in-crop application of dicamba herbicides is void and not applicable to Plaintiffs: Greg Hart, Becton Bell, Michael McCarty, Perry Galloway, Ross Bell, and Matt Smith. The State Plant Board Rule is null and void as if it had never been enacted as to these individuals.
The circuit court noted that the case was not brought as a class action and that the rule establishing the April cutoff date is "only applicable to the Plaintiffs in the present case." The Farmers' complaint was based on injury that they alleged they would sustain if the April cutoff date was implemented. The circuit court specifically referenced the April cutoff date in its order. Because the new rule provides that dicamba may now be used through May 25 of each year, the controversy between the parties has been eliminated as to the circuit court's order regarding the April cutoff date. We therefore dismiss the Board's appeal as moot.
IV. Cross-Appeal
The Farmers appealed the circuit court's order dismissing their constitutional claims and their administrative appeal because of the State's sovereign immunity. Just as the Board's promulgation of the new dicamba cutoff rule renders the Board's direct appeal moot, the Farmers' cross appeal is moot with respect to their administrative appeal of the denial of their petition for rulemaking, as well as their claims regarding improper communications or procedural irregularities associated with that denial. However, the Farmers have also alleged that Arkansas Code Annotated § 2-16-206, which provides for the appointment of Board members from various private groups, is an unconstitutional delegation of legislative-appointment power to private industry. This claim is not moot. The circuit court noted that the Board raised the affirmative defense of sovereign immunity, cited Andrews , and dismissed the Farmers' constitutional claims with prejudice.
The circuit court's reliance on Andrews to find that the Farmers' complaint was barred by sovereign immunity is misplaced. Andrews held only that legislative waivers of the State's sovereign immunity are unconstitutional. After we decided Andrews , we concluded that the defense of sovereign immunity was inapplicable in a lawsuit seeking only declaratory and injunctive relief and alleging an illegal, unconstitutional, or ultra vires act. Martin v. Haas , 2018 Ark. 283, 556 S.W.3d 509. In Haas , a voter alleged that new voting verification requirements violated the Arkansas Constitution. Although the State raised sovereign immunity as a defense, we stated that
[b]ecause appellee has asserted that Act 633 violates qualified voters' constitutional right to vote and seeks declaratory and injunctive relief, not money damages, this action is not subject to the asserted sovereign-immunity defense.
Id. at 8, 556 S.W.3d at 515.
Because the Farmers here alleged that the process by which Board members are appointed violates the constitution, and because the Farmers sought only declaratory and injunctive relief, their constitutional claims are not subject to the sovereign immunity defense. Accordingly, the circuit court's order dismissing the Farmers' constitutional claims is reversed, and this matter is remanded for further proceedings consistent with this opinion.
Dismissed as moot on direct appeal; dismissed in part as moot and reversed in part on cross-appeal; and remanded.
Baker, J., concurs in part and dissents in part.
The parties at times refer to both April 15 and April 16 as the cutoff date. There is no dispute that in-crop application of dicamba-based herbicides were prohibited after April 15 under the 2018 rule.
On April 13, 2018, we granted the Board's motion for a stay of the circuit court's order pending the appeal. | [
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ROBERT GLADWIN, Judge
The appellant, Connie Montigue, and the appellee, Donna Jones, are sisters. Their father, Freddie Graham, died in 2011. In 2013, Montigue, individually and as the personal representative of her father's estate, filed a petition for a declaratory judgment seeking to void several transfers of real and personal property that Mr. Graham made to Jones in the years and months before his death. Montigue alleged that Jones applied undue influence on her father, who, particularly in the months before his death, also lacked the mental capacity to execute the transfers. Jones filed a counterclaim for a judgment declaring that the transfers validly extinguished any interest that Montigue had in her father's property.
After a bench trial, the circuit court granted Jones's motion for a directed verdict and entered a final order denying Montigue's petition for a declaratory judgment. The order also granted Jones's counterclaim. We reverse the circuit court's judgment and remand the case for further proceedings.
I. Background Facts
Starting in 1997, Mr. Graham executed a series of documents that transferred, or purported to transfer, his twenty-three-acre property in Lavaca, Arkansas, to Jones. The first was a warranty deed that he executed on April 21, 1997. Mr. Graham purportedly transferred the property to Jones in exchange for "one dollar and other valuable consideration." There is no indication, however, that the deed was recorded.
Mr. Graham next executed a warranty deed on April 22, 2003. In exchange for one dollar, the deed purported to transfer the same twenty-three-acre property to himself and Jones as "joint tenants with right of survivorship, and not as tenants in common." Like the first, there is no indication that this deed was recorded.
A little over two years later, on October 5, 2005, Mr. Graham executed a beneficiary deed providing that the twenty-three-acre property would transfer to Jones at his death. Unlike the previous two deeds, the beneficiary deed was recorded the following day.
Mr. Jones followed the beneficiary deed with a last will and testament, which he executed on January 19, 2007. The document appointed Jones as the executor of Mr. Graham's estate, and it bequeathed "whatever vehicle [he] own[s] at the time of [his] death" to Jones. It also bequeathed various items of personal property to Jones's son, Brian, including Mr. Graham's John Deere tractor, a utility trailer, a four-wheel ATV, and "all guns which [he] own[s] at [his] death." Significantly, Mr. Graham also bequeathed
all the rest, residue and remainder of [his] estate, whether real, personal or mixed and wheresoever situated or to which [he] may in any way be entitled at the time of [his] death to [his] daughters, Donna R. Jones and Connie J. Montigue, to share and share alike equally among the two of them.
Mr. Graham also executed a declaration in which he acknowledged the prior beneficiary deed to Jones and stated the following:
The purpose of this [declaration] is to establish in writing that it is my desire that Donna R. Jones hold a $ 50,000.00 interest in said real property in trust for my daughter, Connie J. Montigue. That Donna R. Jones shall not be obligated to pay any sum or interest to Connie J. Montigue until such time as such real property is sold. Donna R. Jones is instructed that upon said property being sold that she is to pay to Connie J. Montigue the sum of $ 20,000.00 within a reasonable period of time after closing. That Donna R. Jones is directed to pay an additional $ 20,000.00 to Connie J. Montigue one (1) year thereafter. Donna R. Jones is further instructed to pay the sum of $ 10,000.00 to Connie J. Montigue one (1) year thereafter for a total payment of $ 50,000.00 to Connie J. Montigue.
Mr. Graham apparently was hospitalized for a stomach infection on or about December 8, 2008. While hospitalized, he executed a durable power of attorney that appointed Jones as his attorney-in-fact. The power of attorney authorized Jones "to do any and all necessary acts concerning the management of [Mr. Graham's] estate," as well as "the right to approve or authorize medical treatment, surgery, the giving of medication, or other related health decisions."
The durable power of attorney was followed by a ratification that Mr. Graham and Jones executed on December 15, 2008. The ratification provides, in pertinent part, that
it is [Mr. Graham's] intent and that he has conferred with his daughter, Donna R. Jones, and that she understands that her ownership of [the twenty-three-acre property] by virtue of the Beneficiary Deed is subject to the terms of this Declaration and subject to the terms of the original declaration as ratified by this agreement and that she consents and agrees to the terms of the original Declaration of Freddy R. Graham in so far as it pertains to this particular real property and she agrees, understands, and ratifies the terms of this ratification of such declaration of Freddy R. Graham.
To-wit: Donna R. Jones shall be entitled to hold the real property for so long as she desires, but that in the event said real property is sold that she shall pay Connie J. Montigue the sum of $ 50,000.00.
Also on December 15, Mr. Graham executed a series of beneficiary deeds in Jones's favor that transferred minerals and mineral rights that he owned in Crawford, Sebastian, Logan, Johnson, and Franklin Counties.
Three years later, on March 3, 2011, Mr. Graham suffered a stroke and was hospitalized. Shortly thereafter, on March 11, Mr. Graham executed two bills of sale that transferred to Jones the personal property that he bequeathed in his will. Specifically, he signed documents that transferred his 2009 Chevrolet pick-up truck to Jones and his four-wheeler, tractor, guns, and crossbow to his grandson, Brian Jones.
After Mr. Graham's release from the hospital, on March 18, Jones filled out an application on his behalf for the Fountain of Youth adult day-care facility in Fort Smith. On the medical-history portion of the application, Jones explained that while Mr. Graham had not been diagnosed with dementia or Alzheimer's disease, he nonetheless had suffered a "mini stroke in the brain" that caused "cognitive issues ... and confusion." Jones wrote that Mr. Graham's mental state was such that he "[did] not converse a lot unless communicated with," and regarding Mr. Graham's abilities for verbal communication, Jones noted that the staff of the facility "might not get an answer relevant to the question." Jones also indicated that the staff of the facility needed to help Mr. Graham take his medication because he did not understand their names, purposes, dosages, or safety precautions. Jones further provided that the Fountain of Youth staff was not authorized to disclose Mr. Graham's health information to Montigue, Montigue's two daughters, or to Mr. Graham's ex-wife, Lila Cobb.
Finally, on April 4, 2011, Mr. Graham executed yet another deed regarding his twenty-three-acre property in Lavaca. In this warranty deed, Mr. Graham transferred title to the property to Jones in fee simple, and he revoked "any Beneficiary Deed, any Declaration of Trust, or other document effecting (sic) title to [the] property."
Mr. Graham died on November 20, 2011. Montigue was appointed administrator of his estate on October 30, 2012. Almost a year later, on July 13, 2013, Montigue filed a petition for a declaratory judgment in which she alleged that an unexecuted 2005 draft of Mr. Graham's last will and testament established that Mr. Graham intended to divide all his property equally between his two daughters. Montigue further alleged that Mr. Graham and Jones were in a fiduciary relationship "under one or more powers of attorney," and after 2005, Mr. Jones signed "a number of instruments" while "acting under [Jones's] guidance and improper influence," resulting in "the conveyance of essentially all of the estate ... to Jones." According to Montigue, Mr. Graham's stroke in 2011 "[made] him even more dependent on [Jones] and [placed] her in an even stronger position of influence" when Mr. Graham executed the last warranty deed on April 4, 2011. For these reasons, Montigue sought a judgment declaring that
any interest [Mr. Graham] may have had in any real estate in 2005 which was subsequently conveyed to [Jones] in contradiction to the express intent of [Mr. Graham] that the property be divided equally between [Jones and Montigue] [was] void and that all of the real estate owned by [Mr. Graham] or which [Mr. Graham] had an interest in 2005 at the time the [unexecuted] will was drafted be declared to be a part of the probate estate herein.
Montigue amended her petition for a declaratory judgment on December 23, 2015, after discovering that Mr. Graham actually executed a will in 2007. In addition to a judgment declaring the property transfers void, Montigue sought an alternative judgment declaring that Jones holds title to the assets in trust and that Jones, according to Mr. Graham's testamentary intent, "should distribute one-half of such assets [and income] to herself and one-half ... to Montigue."
Jones filed a counterclaim for a declaratory judgment on March 21, 2016. Jones alleged that "[o]n or about April 21, 1997, [Mr. Graham] began finalizing his estate plan with a series of deeds, beneficiary deeds, will, declaration, ratification, power of attorney, and bill[s] of sale[.]" She asserted that Mr. Graham "intended to avoid probate if possible" and "engaged in significant efforts to plan his estate accordingly." Jones further alleged that Mr. Graham "already knew that [his twenty-three-acre] property would pass to [Jones] at the time of his death with [Montigue] having a monetary interest in the property if it was ever sold," and "the only reason" for Mr. Graham to execute the last warranty deed on April 4, 2011, was "to revoke any interest [Montigue] may have in the disputed property." Consequently, Jones requested a judgment quieting title to her and declaring that the warranty deed that Mr. Graham executed on April 4, 2011, extinguished Montigue's interest. Jones alternatively requested a judgment declaring that Montigue was entitled to only $ 50,000 after the sale of the property as Mr. Graham provided in the December 15, 2008 ratification.
Shortly before trial, Montigue filed a motion for partial summary judgment alleging that there was no genuine issue of material fact as to whether Jones and Mr. Graham were in a confidential relationship. Montigue's motion was principally based on Jones's admission, in her answer to Montigue's initial petition for a declaratory judgment, that she had power of attorney and "for several years acted in a fiduciary relationship as an advisor to [Mr. Graham]." The circuit court denied the motion.
The case proceeded to a final hearing on September 19, 2017. On direct examination by Montigue's counsel, Jones testified that Mr. Graham was hospitalized for two days following his stroke on March 3, 2011. She "took him to [her] house" after he left the hospital, and he stayed in Jones's home for three weeks. Jones also acknowledged that she "had exclusive control" of her father at that time, including when she made the statements concerning Mr. Graham's diminished cognitive ability on the application for the Fountain of Youth. She further testified that she withheld authorization for the Fountain of Youth staff to share Mr. Graham's health information with Montigue, her daughters, and Ms. Cobb because Montigue and the others "never came around [or] cared about him anyway."
Jones thereafter testified about the circumstances surrounding Mr. Graham's execution of the last warranty deed on April 4, 2011:
Q. Where was the-was the Warranty Deed Prepared? What was the location?
A. It was in Greenwood, Arkansas, at the Walter Law Firm.
Q. Okay. And were you present when the deed was signed?
A. Yes.
Q. And prior to the signing of the Deed, did you discuss that Deed with your father?
A. There was a discussion between my father, me, and my sister.
Q. Okay. And when did that discussion take place?
A. The date before.
Q. Okay. That would be April 3rd?
A. Yes.
Q. Okay. And would you tell the Court what you stated and what your sister stated and what your father stated at that time on (sic) when you had that discussion we just referred to?
A. I was discussing with them the possibility of the property getting taken by the government.
....
Q. What did you say about the Deed, the preparation of the Deed?
A. That it needed to be transferred into my name, like it already was, to keep the government from getting it at the time of his death, whenever it may be.
Q. Now, did you call Bill Walters' office concerning that? The preparation of that Deed?
A. Yes. I called and talked to Bill.
Q. Okay. And then after you called Bill Walters' office, did you take your Dad to Bill Walters' office to sign the Deed?
A. Yes, we went over there.
Jones gave conflicting testimony, moreover, about the bills of sale that Mr. Graham executed on March 11, 2011. On direct examination by Montigue's counsel, Jones testified as follows:
Q. Now, did you pick up that Bill of Sale [regarding the four-wheeler, tractor, and guns] from Bill Walters' office at the same time that you picked up the Bill of Sale to the vehicle that you got to the Chevy pickup?
A. Yes.
Q. And did you take them to your father and ask him to sign them at the same time?
A. Yes.
Q. Now, this was-let's see. March 3rd was when he had his stroke. Is that correct?
A. Correct.
Q. And he didn't call Bill Walters and ask him to prepare these Bill of Sales (sic) did he?
A. No, he did not.
Q. You did. Is that correct?
A. That's correct.
On cross-examination by her own counsel, however, Jones testified as follows:
Q. And there [were] some questions about these bill of sales (sic), how they got to your possession. Who told you to go get those?
A. Bill.
Q. Now, that was within seven days after your dad having a stroke, is that correct?
A. Correct.
Q. And Mr. Walters had gone up to the hospital?
A. Correct.
Q. Were you there when Mr. Walters and your dad spoke?
A. I was in and out. I can't be certain.
Q. But it wasn't you that called Mr. Walters and said, "Hey, I need you to prepare these bill of sales (sic)." Mr. Walters called you?
A. Correct. Correct.
Q. So your dad could have told Mr. Walters to prepare those?
A. Yes.
Jones also acknowledged that she had been "disturbed about [Mr. Graham] giving [Montigue] money over the years," particularly in the three or four years immediately preceding his death, when she claimed that Mr. Graham "kept coming to [her] house complaining" about giving money to Montigue. Jones testified that she called Mr. Graham's lawyer-Bill Walters-at one point because she "thought we should take him off of the account and [that she] should control the money," but she relented when Mr. Walters allegedly responded that "you can't tell a man how to spend his money." Jones denied making any suggestion that her father should transfer his property to her in order to protect his assets, but she testified that the last time Mr. Graham gave money to Montigue "was probably two weeks" before his stroke.
For her part, Montigue testified that she received financial assistance from her father over the years for items for her children, rent, and a down payment for a home. She also claimed that her father was generally quiet after his stroke, but "could definitely verbally express himself" when Jones allegedly tried "to get him to sign some paperwork" that he did not want to sign. Montigue also testified that she saw Jones "shoving papers in [Mr. Graham's] face [when] he didn't have his glasses" but denied having any personal knowledge of her father's signing any documents that he did not want to sign. She believed, however, that Jones exploited "cognitive issues" that Mr. Graham had before and after his stroke.
At the close of the petitioner's case, Montigue argued that the evidence demonstrated that Jones procured the bills of sale and the last warranty deed by "calling Bill Walters and requesting that he prepare [the] documents" and by "transporting [Mr. Graham] to sign [the] documents while she was present." According to Montigue, the procurement, along with the confidential relationship established by the power of attorney executed in 2008, warranted shifting the burden to Jones to produce evidence of both adequate mental capacity and the absence of undue influence.
Jones responded that the evidence did not establish procurement because there was no indication that she used her power of attorney to execute any of the documents at issue. Jones also insisted that her conduct fell short of procurement because she merely acted as a courier-for both the documents and Mr. Graham himself-and he otherwise signed the documents of his own free will. Jones additionally argued that the burden would not shift even if the evidence demonstrated procurement because the documents at issue were deeds and bills of sale, rather than Mr. Graham's will. Jones moved for a directed verdict, therefore, because the burden of proof remained with Montigue, and according to Jones, Montigue failed to demonstrate undue influence or lack of mental capacity.
The circuit court granted Jones's motion for a directed verdict. From the bench, the circuit court explained that "there's no evidence of procurement," as Montigue testified that Mr. Graham did not "sign anything that he didn't want to sign," and "if anything, [Jones] was a mere courier between her Dad and Mr. Walters." The court also "did not find that a fiduciary relationship existed" from the "mere presence of [a] power of attorney [that] was executed back in 2008[.]" The court found that to be so "especially when [the power of attorney] is prepared by an attorney" and in this case, "Mr. Walters was an upstanding member of this Bar" and "had the ability to do estate planning and meet with his clients." Additionally, the circuit court found that there was "no evidence," in any event, "that Ms. Jones ever used the power of attorney."
As to whether Montigue carried her burden of proving undue influence, the circuit court decided, based on testimony that "Mr. Walters was a close friend, confidant, and lawyer of Freddie Graham," that he "would not have permitted his friend and client to be influenced." Indeed, the circuit court observed that "[i]f Mr. Walters thought Ms. Jones was procuring assets for her benefit," he "would have put a stop to it, just like he told Ms. Jones in a phone conversation that you can't tell a man how to spend his money." The circuit court also found that there "was no evidence in this case of a mental incapacity, any mental incompetence, [or] any psychological problems."
Shortly after the conclusion of the trial, Montigue filed a motion requesting that the circuit court make specific findings of fact and conclusions of law pursuant to Ark. R. Civ. P. 52(a) (2018). The circuit court denied the motion and entered a written order that memorialized its directed-verdict ruling from the bench, denied Montigue's petition for declaratory judgment, and granted Jones's counterclaim for a declaratory judgment.
Montigue now appeals the circuit court's order, arguing, inter alia , that the circuit court erred by finding insufficient evidence to shift the burden of proof to Jones. Montigue argues, in particular, that she introduced sufficient evidence of procurement, as well as a confidential relationship between Jones and Mr. Graham, to warrant shifting to Jones the burden of producing evidence that Mr. Graham had the mental capacity and free will to execute the documents transferring his property. We agree.
II. Standards of Review
This court reviews equity proceedings de novo, but it will not reverse a finding of fact by the circuit court unless it is clearly erroneous. Griffith v. Griffith , 2018 Ark. App. 122, at 7, 545 S.W.3d 212, 216. A finding is clearly erroneous when, although there is evidence to support it, this court is left on the entire evidence with the firm conviction that a mistake was made. Id. The court generally defers to the superior position of the circuit court to weigh the credibility of the witnesses. Id.
A different standard may apply when, as here, a circuit court grants a motion for a directed verdict or a motion to dismiss at the conclusion of a petitioner's case. In those instances, the circuit court's duty is to decide "whether, if it were a jury trial, the evidence would be sufficient to present to the jury." Stanley v. Burchett , 93 Ark. App. 54, 58, 216 S.W.3d 615, 618 (2005). "A motion for a directed verdict should be granted only if there [would be] no substantial evidence to support a jury verdict." Woodall v. Chuck Dory Auto Sales, Inc. , 347 Ark. 260, 264, 61 S.W.3d 835, 838 (2001) (internal citation omitted). "In making that determination, the trial court does not exercise fact-finding powers that involve determining questions of credibility." Stanley , 93 Ark. App. at 58, 216 S.W.3d at 619. Moreover, in determining whether the circuit court should have granted the motion, this court "review[s] the evidence in the light most favorable to the party against whom the verdict is sought and gives it its highest probative value, taking into account all reasonable inferences deducible from it." Woodall , 347 Ark. at 264, 61 S.W.3d at 838. "Where the evidence is such that fair-minded persons might reach different conclusions ... the directed verdict should be reversed." Id.
III. Discussion
A. Procurement and Confidential Relationship
Montigue first argues that the circuit court erred by ruling that she failed to come forward with sufficient evidence of procurement and confidential relationship in order to shift the burden of producing evidence of mental capacity and lack of undue influence to Jones. Because we agree that the circuit court erred by granting the motion for directed verdict, we reverse and remand the case for further proceedings.
For the sake of clarity, we first address a preliminary matter. While the existence of a fiduciary relationship, vel non, is not dispositive in this case, it is noteworthy here that the circuit court erred when it concluded that the durable power of attorney did not create such a relationship between Mr. Graham and Jones. "A person who holds power of attorney is an agent, and it has long been recognized that a fiduciary relationship exists between principal and agent in respect to matters within the scope of the agency." Dent v. Wright , 322 Ark. 256, 261, 909 S.W.2d 302, 304 (1995). As we indicate above, on December 8, 2008, Mr. Graham executed a durable power of attorney that, among other things, gave Jones "full and complete power and authority in the premises to do, say, act, transact, and perform each and every act necessary in the management of [his] affairs and [his] estate[.]" Montigue correctly argues, therefore, that the circuit court erred when it concluded that "[n]o fiduciary relationship existed" between Mr. Graham and Jones on matters regarding his estate.
Turning to the issues at hand, a party seeking to set aside a deed ordinarily has the burden of proving by a preponderance of the evidence that the grantor of the deed lacked mental capacity at the time the deed was executed or that the grantor acted under undue influence. See Estate of McKasson v. Hamric , 70 Ark. App. 507, 510, 20 S.W.3d 446, 449 (2000). A rebuttable presumption of undue influence or lack of mental capacity arises, however, upon a showing that the grantee procured the deed while in a confidential relationship with the grantor. See Hamric , 70 Ark. App. at 511, 20 S.W.3d at 449 ; see also Myrick v. Myrick , 339 Ark. 1, 6, 2 S.W.3d 60, 64 (1999) (a transfer to the dominant party in a confidential relationship raises a presumption of undue influence). In that instance, the grantee must go forward with evidence that the grantor possessed both the required mental capacity and freedom of will. See Hamric , 70 Ark. App. at 510, 20 S.W.3d at 448. However, the burden of proof, in the sense of the necessity to prove lack of mental capacity or undue influence by a preponderance of the evidence, remains with the party challenging the deed. See Hodges v. Cannon , 68 Ark. App. 170, 177, 5 S.W.3d 89, 95 (1999).
"Procurement," which originally meant that the grantee of a deed wrote the instrument himself, has been extended to situations in which the grantee caused the deed to be prepared and participated in its execution. See Hamric , 70 Ark. App. at 510, 20 S.W.3d at 448. Further, "[t]here is no set formula by which the existence of a confidential relationship may be determined, for each case is factually different[.]" Lucas v. Grant , 61 Ark. App. 29, 34, 962 S.W.2d 388, 390 (1998). A confidential relationship is not established simply because parties are related, Wesley v. Estate of Bosley , 81 Ark. App. 468, 475, 105 S.W.3d 389, 394 (2003), but other factors, such as a showing of special trust and dependence, may combine with a familial connection to create a confidential relationship. In particular, a confidential relationship may arise "between a person who holds power of attorney and the grantor of that power." Medlock v. Mitchell , 95 Ark. App. 132, 136, 234 S.W.3d 901, 905 (2006).
As we note above, the property under dispute includes the minerals and mineral rights that were transferred via the beneficiary deeds that Mr. Graham executed in 2008; Mr. Graham's twenty-three-acre property in Lavaca; and the personal property that was transferred via the bills of sale that Mr. Graham executed shortly after his stroke in 2011. With the above standards in mind, we discuss each disputed item of property in turn.
1. The minerals and mineral rights
Contemporaneously with the durable power of attorney, Mr. Graham executed several beneficiary deeds that transferred minerals and mineral rights to Jones upon his death. There was no testimony at the hearing, however, regarding the circumstances surrounding the execution of those deeds, let alone whether Jones procured them. Therefore, the circuit court did not err when it determined that Montigue's evidence did not warrant shifting the burden of production with respect to the mineral deeds.
2. The twenty-three acres in Lavaca
The twenty-three acres that Mr. Graham transferred, or purported to transfer, by deed in 2011, however, is another matter. Montigue introduced evidence to warrant shifting the burden of production with respect to the last warranty deed that Mr. Graham executed after his stroke in 2011. The durable power of attorney that Mr. Graham executed in 2008, along with Jones's testimony that she had "exclusive control" of her father after his stroke, was sufficient, in our view, to demonstrate that she and her father were in a confidential relationship. There also was evidence of procurement, as Jones's testimony established that she advised her father to transfer the property to her to avoid its seizure by the government, called Mr. Walters to arrange the drafting of the deed, drove her father to Mr. Walters's office on the day of its execution, and was present when her father signed the deed. Consequently, we reverse the circuit court's directed-verdict ruling and remand the case for further proceedings.
3. The bills of sale
For similar reasons, we hold that the circuit court erred when it concluded that there was "no evidence of procurement" warranting a presumption that Mr. Graham lacked the mental capacity and free will to execute the bills of sale. There was some evidence that Jones procured those documents, as she testified on direct examination that she called Mr. Walters to have them drafted. Mr. Graham also executed the documents in 2011 when, for the reasons we discuss above, he and Jones were in a confidential relationship. Accordingly, we hold that the circuit court erred by finding there was no evidence of procurement and confidential relationship to warrant shifting the burden of production with respect to the real and personal property that Mr. Graham purportedly transferred in 2011.
B. Judicial Notice
Montigue additionally argues that the circuit court erred by taking judicial notice of Bill Walters's reputation in the legal community and concluding, based on that alleged reputation, that Mr. Walters "would have put a stop" to Jones's procuring assets for her benefit or exercising undue influence on her father. According to Montigue, Mr. Walters's reputation is not the kind of fact that can be judicially noticed under Ark. R. Evid. 201(b) (2018) because it is "subject to reasonable dispute" and incapable of "accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned." We decline to reach the issue because Montigue failed to preserve this argument for appellate review with an appropriate objection below.
Arguments not raised at trial will not be addressed for the first time on appeal, Goodson v. Bennett , 2018 Ark. App. 444, at 13, 562 S.W.3d 847, 857, and Montigue never argued below, as she does here, that the circuit court erred by taking judicial notice of Mr. Walters's reputation under Ark. R. Evid. 201. She made no objection after the court made its comments from the bench, and neither Montigue's motion for findings of fact and conclusions of law nor her letter objecting to the form of the proposed order preserve the issue for appellate review, as she claims. Accordingly, we must affirm.
C. Leading Questions on Direct Examination
Montigue additionally argues that the circuit court erred when it refused to allow her to ask Jones-the adverse party-leading questions on direct examination. Because the circuit court may well hear additional testimony on remand, we take the opportunity to address the issue here.
Arkansas Rules of Evidence 611(c) provides, "[W]henever a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions." Montigue called Jones, the adverse party, to testify as a witness during her case-in-chief. Therefore, according to the plain language of Rule 611(c), the circuit court erred when it ruled that Montigue was not entitled to ask leading questions of Jones.
D. Findings of Fact and Conclusions of Law
Finally, Montigue argues that the circuit court erred when it denied her motion for more specific findings of fact and conclusions of law pursuant to Ark. R. Civ. P. 52(a). We decline to reach this issue because we anticipate that the challenged findings will be superseded by new findings of fact and conclusions of law after further proceedings on remand.
IV. Conclusion
We hold that there was sufficient evidence of procurement and a confidential relationship between Jones and Mr. Graham to warrant shifting to Jones the burden of producing evidence that Mr. Graham had the mental capacity and free will to execute the bills of sale and the last warranty deed that he executed in 2011. Accordingly, we reverse and remand the case to the circuit court for further proceedings consistent with this opinion.
Reversed and remanded.
Virden and Whiteaker, JJ., agree.
Although we are reversing and remanding the case, we take this opportunity to remind the parties that Ark. Sup. Ct. R. 4-2(a)(5) (2018) limits abstracts to information that "is essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal." Rule 4-2(a)(5)(B) likewise prohibits the abstract from "reproduc[ing] the transcript verbatim." The appellant's abstract, which begins with a twenty-six-page transcription of a marginally relevant pretrial hearing, does not comply with these rules. | [
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LARRY D. VAUGHT, Judge
Vasile Stan d/b/a Renaissance Plaster & Design (Stan) appeals the order entered by the Pulaski County Circuit Court (1) finding that it had subject-matter jurisdiction over a complaint filed by Jose Juan Vences and (2) denying Stan's motion to set aside the default judgment that the court had entered against him in favor of Vences. We reverse and dismiss for lack of subject-matter jurisdiction.
On December 12, 2013, Vences filed a complaint for damages in the circuit court alleging that on November 21, 2013, he was Stan's employee and was working in the course and scope of his employment when he sustained a significant injury to his finger. Vences further alleged that his injury was proximately caused by Stan's negligence. Vences also alleged that Stan violated Arkansas law "in failing to provide workers' compensation benefits for his employees ... therefore, [he lost] his immunity from suit." Vences requested damages for past and future medical expenses, past and future lost wages, conscious pain and suffering, and for the permanency of his injury. Stan was served with the complaint on January 23, 2013. No answer was filed.
On May 15, 2014, Vences moved for default judgment, and an order of default was entered on June 19, 2014. A hearing on damages was held on December 10, 2014. Stan did not attend the hearing. Vences, who was a construction worker, testified about his injury, the medical treatment he received, the medical treatment he needed, his pain and suffering, his inability to work in heavy construction, and the effect the injury has had on his work and marriage.
At the conclusion of the hearing, the circuit court orally found that an employment relationship existed between Vences and Stan, that Vences was working within the course and scope of his employment at the time of his injury, and that the injury was proximately caused by Stan's negligence. The circuit court also found that Stan failed to provide workers'-compensation benefits for his employees and therefore lost his exclusive-remedy immunity from suit in tort. The court awarded Vences $ 252,209 plus a "penalty" of $ 25,221 for a total award of $ 277,430. On January 20, 2014, the circuit court entered a judgment finding that Stan was "ineligible for and has waived immunity provided under the [Workers' Compensation] Act" and awarding damages in the amount of $ 252,209.
On August 27, 2015, Stan moved to set aside the default judgment for lack of subject-matter jurisdiction. He argued that he was covered under a policy of workers'-compensation insurance on November 21, 2013, the date of Vences's accident, and that the Arkansas Workers' Compensation Commission ("Commission") website also verified that he had workers'-compensation coverage on November 21, 2013. Accordingly, Stan argued that pursuant to Arkansas Code Annotated section 11-9-105(a) (Repl. 2012), the Commission had exclusive, original jurisdiction of the case and that the exception to the exclusive-remedy rule found in section 11-9-105(b) was not triggered.
After a hearing on Stan's motion to set aside the default judgment, the circuit court took the matter under advisement. On August 2, 2017, the circuit court entered an order concluding that it had subject-matter jurisdiction over the case and denying Stan's motion to set aside the default judgment. In reaching these conclusions, the court found that subject-matter jurisdiction is determined on the pleadings, and Vences's complaint "stated that [Stan] affirmatively denied having workers' compensation coverage." The court therefore found that the section 11-9-105(b)(1) exception to the exclusive-remedy provision was triggered and gave the circuit court jurisdiction to hear the case. The court also found that Stan failed to present the mandatory affirmative defense of exclusive remedy; therefore, he waived the defense. Stan appeals this order, raising three points: (1) the circuit court lacked subject-matter jurisdiction; (2) the default judgment is void for lack of subject-matter jurisdiction; and (3) Stan did not and could not waive his challenge to the lack of subject-matter jurisdiction by failing to answer the complaint.
Default judgments are governed by Rule 55 of the Arkansas Rules of Civil Procedure. Rule 55(c) provides that a court may set aside a default judgment if the judgment is void. Ark. R. Civ. P. 55(c) (2018). Taken together, Stan's first two arguments on appeal are that the default judgment was void for lack of subject-matter jurisdiction. In cases where the appellant claims that the judgment is void under Rule 55(c)(2), the appellate courts will review a circuit court's denial of a motion to set aside default judgment using a de novo standard. Morgan v. Big Creek Farms of Hickory Flat, Inc. , 2016 Ark. App. 121, at 3, 488 S.W.3d 535, 538 (citing Nucor Corp. v. Kilman , 358 Ark. 107, 118, 186 S.W.3d 720, 727 (2004) ).
Stan's first argument is that the circuit court lacks subject-matter jurisdiction of Vences's action because he is immune from suit in tort under the exclusive-remedy provision of the Workers' Compensation Act ("Act"), which he claims gives the Commission exclusive jurisdiction. He argues that when the Act applies, the circuit court is wholly without jurisdiction. He further argues that the Commission has exclusive, original jurisdiction to determine the facts that establish subject-matter jurisdiction.
Generally, an employer who carries workers'-compensation insurance is immune from liability for damages in a tort action brought by an injured employee. Entergy Ark., Inc. v. Pope Cty. Circuit Court , 2014 Ark. 506, at 6, 452 S.W.3d 81, 84. This rule, known as the exclusivity doctrine, provides that "[t]he rights and remedies granted to an employee subject to the provisions of this chapter, on account of injury or death, shall be exclusive of all other rights and remedies of the employee ... from the employer ... on account of the injury or death...." Entergy Ark. , 2014 Ark. 506, at 6, 452 S.W.3d at 84 (citing Ark. Code Ann. § 11-9-105(a) ).
In Reynolds Metal Company v. Circuit Court of Clark County , our supreme court explained the exclusivity doctrine as follows:
Beginning with the decision in VanWagoner v. Beverly Enterprises , 334 Ark. 12, 16, 970 S.W.2d 810, 812 (1998), this court has consistently followed the rule that the Arkansas Workers' Compensation Commission "has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort." Thus, when a party to a lawsuit raises a question of whether a person enjoys immunity as an employer under the Arkansas Workers' Compensation Act, the Commission must first decide the issue. In adopting this rule, we have explained that the Commission has vast expertise in this area and that the goals of uniformity, speed, and simplicity would best be achieved by granting the Commission the exclusive, original jurisdiction to determine the applicability of the Workers' Compensation Act.
2013 Ark. 287, at 4, 428 S.W.3d 506, 508-09 (internal citations omitted). There is an exception within the exclusive-remedy provision:
[I]f an employer fails to secure the payment of compensation as required by this chapter, an injured employee, or his or her legal representative in case death results from the injury, may, at his option, elect to claim compensation under this chapter or to maintain a legal action in court for damages on account of the injury or death.
Ark. Code Ann. § 11-9-105(b)(1). Arkansas Code Annotated section 11-9-404(a)(1) defines how an employer meets its obligation to "secure the payment of compensation under this chapter"; one such means is "[b]y insuring and keeping insured the payment of the compensation with any carrier authorized to write workers' compensation insurance[.]" Wilhelm v. Parsons , 2016 Ark. App. 56, at 11, 481 S.W.3d 767, 774. In Rankin v. Farmers Tractor& Equipment Co. , our supreme court interpreted that statute to mean that if there was an employer/employee relationship and the employer provided workers'-compensation coverage for its employees, then this satisfied the "secure the payment of compensation" wording in the statute. 319 Ark. 26, 32, 888 S.W.2d 657, 660 (1994). In order to prove the payment of compensation to effect the exclusive remedy, an employer is required to prove insurance coverage-not that an employee is in fact covered or in fact paid. Wilhelm , 2016 Ark. App. 56, at 11-12, 481 S.W.3d at 774.
With these principles in mind, we hold that the circuit court erred in concluding that it had subject-matter jurisdiction over Vences's complaint. Our supreme court made it clear in VanWagoner that the Commission has exclusive, original jurisdiction to determine the facts that establish subject-matter jurisdiction. VanWagoner , 334 Ark. at 16, 970 S.W.2d at 811. "We believe that the better rule is to recognize the administrative law rule of primary jurisdiction and to allow the Workers' Compensation Commission to decide whether an employee's injuries are covered by the Workers' Compensation Act." Id. at 15, 970 S.W.2d at 812. When a party to a lawsuit raises a question of whether a person enjoys immunity as an employer under the Act, the Commission must first decide the issue. Reynolds , 2013 Ark. 287, at 4, 428 S.W.3d at 509 ; Pineda v. Manpower Int'l, Inc. , 2017 Ark. App. 350, at 6, 523 S.W.3d 384, 389. Vences raised the issue of immunity in his complaint, alleging that Stan failed to provide workers'-compensation benefits for his employees. Therefore, we hold that Vences's action is barred by the exclusive-remedy provision of the Act.
Vences argues that the circuit court's finding that it had subject-matter jurisdiction over his complaint cannot be overturned because the court had an "arguable basis" for the existence of jurisdiction. We reject this argument. First, it was not raised below and was not ruled on by the circuit court; therefore, we will not consider it. Foster v. Foster , 2010 Ark. App. 594, at 6, 377 S.W.3d 497, 502. Second, we have found no Arkansas case adopting this arguable-basis standard in this context. To the contrary, there is substantial Arkansas law, as cited herein, that applies to this case and does not include an arguable-basis standard.
Vences also argues that subject-matter jurisdiction is tested on the pleadings and not on the proof, and that based on the allegations in the complaint the circuit court had jurisdiction. In Maroney v. City of Malvern , our supreme court held that subject-matter jurisdiction is determined from the pleadings; the complaint, answer, or cross-complaint. 320 Ark. 671, 676, 899 S.W.2d 476, 478-79 (1995). Subject-matter jurisdiction "is tested on the pleadings and not the proof." Id. , 899 S.W.2d at 478-79. Nevertheless, we disagree with Vences's argument that the allegations contained in the pleadings-in this case the complaint because no answer was filed by Stan-gave the circuit court subject-matter jurisdiction. To the contrary, Vences's complaint raises the question of the Commission's exclusive jurisdiction. He alleged that (1) an employee/employer relationship existed at the time of his accident, (2) his injury occurred in the course and scope of his employment, and (3) Stan committed negligence (not an intentional tort). These allegations bring Vences's claim within the exclusive-remedy provision of the Act. Ark. Code Ann. § 11-9-105(a). Our caselaw is clear that claims of an employer's negligence that result in physical injury are covered exclusively by the Act and fall within the exclusive jurisdiction of the Commission. Truman Arnold Cos. v. Miller Cty. Circuit Court , 2017 Ark. 94, at 4-5, 513 S.W.3d 838, 841 (citing Int'l Paper Co. v. Clark Cty. Circuit Court , 375 Ark. 127, 289 S.W.3d 103 (2008) ).
Vences's complaint also contains the allegation that Stan "fail[ed] to provide workers' compensation benefits for his employees." This one phrase in the complaint is the linchpin of Vences's case. He argues that this allegation triggers the section 11-9-105(b)(1) exception; divests the Commission of its section 11-9-105(a) exclusive jurisdiction; and gives the circuit court subject-matter jurisdiction of his action. We disagree.
The allegation that Stan "failed to provide workers' compensation benefits for his employees" does not establish as a matter of law that he failed to "secure the payment of compensation" as required under Arkansas Code Annotated sections 11-9-105(b)(1) and 11-9-404(a)(1). This allegation fails entirely to address whether Stan secured the payment of compensation or, in other words, whether he had a policy of workers'-compensation insurance in effect at the time of Vences's injury. In sum, the allegations in Vences's complaint-as a matter of law-fall squarely within the exclusive jurisdiction of the Commission.
Lastly, Vences argues that if facts outside the pleadings are considered, they do not erode the circuit court's subject-matter jurisdiction because Stan denied having workers'-compensation coverage and Stan's workers'-compensation carrier wrote in a letter on August 15, 2014, that "this is not a workers' compensation matter." There is one piece of undisputed evidence outside the pleadings that undermines Vences's argument: Stan had workers'-compensation insurance at the time of Vences's injury. The policy was introduced into evidence. Stan's insurance agent testified that Stan had a policy in place. The Commission's director of Operations and Compliance, Carl Bayne, testified that Stan had workers'-compensation insurance. That ends the inquiry. Rankin , 319 Ark. at 32, 888 S.W.2d at 660 ; Pineda , 2017 Ark. App. 350, at 11, 523 S.W.3d at 391 ; Wilhelm , 2016 Ark. App. 56, at 11-12, 481 S.W.3d at 774.
Despite Vences's argument to the contrary, it is of no significance that Vences's attorney claimed that Stan denied having workers'-compensation coverage or that Stan's workers'-compensation carrier wrote a letter stating that "this is not a workers' compensation matter" or that Bayne testified that the best way to determine whether an employer has workers'-compensation insurance is to ask the employer. In Pineda , our court held that testimony from the supervisory employee that he did not believe the employer had a workers'-compensation policy that would cover Pineda was "not the relevant inquiry. The only germane question for a determination on exclusive remedy is whether [the employer] had a workers' compensation policy in effect at the time of the employee's injury." 2017 Ark. App. 350, at 11, 523 S.W.3d at 391-92. It is undisputed that Stan had workers'-compensation coverage.
Moreover, Vences relies on controverted evidence. While Vences's attorney repeatedly claims that Stan said that he did not have workers'-compensation insurance, Vences provided no evidence to support that claim. Arguments and statements by attorneys are not evidence. McCoy v. Robertson , 2018 Ark. App. 279, at 13, 550 S.W.3d 33, 40 (holding that counsel's statements and assertions cannot substitute for evidence of proof of service). Further, Stan specifically denied telling Vences's attorney this in his deposition. Stan testified that he paid premiums for workers'-compensation insurance and that he knew he had the insurance.
While the letter to Stan from his workers'-compensation carrier stating that "this is not a workers' compensation matter" can be interpreted to mean that he did not have coverage, it could also be interpreted that he did, but the carrier was denying the claim for some reason, i.e., because Stan did not timely report it or because Vences was not an employee. Finally, Bayne testified that the most accurate way to find out if an employer has workers'-compensation insurance is to call the employer's insurance carrier or to call the Commission. Bayne stated that asking the employer is another way to find out about insurance-not the best way.
If the circuit court considered all this evidence outside the pleadings, then it is clear that the facts presented below were not so one-sided that the issues of employer status and immunity can be determined as a matter of law. VanWagoner , 334 Ark. at 16, 970 S.W.2d at 812. To the extent that the circuit court made factual findings on the issue of subject-matter jurisdiction, as set forth above, our supreme court has held that it is within the exclusive province of the Commission to evaluate questions of fact to determine jurisdiction. Truman Arnold Cos. , 2017 Ark. 94, at 6, 513 S.W.3d at 841 ; see also Entergy Ark. , 2014 Ark. 506, at 7, 452 S.W.3d at 85 (holding that the determination of insurance coverage lies exclusively with the Commission). For all these reasons, we hold that the circuit court lacked subject-matter jurisdiction of Vences's lawsuit.
Stan's second argument on appeal is that the default judgment is void for lack of subject-matter jurisdiction. Subject-matter jurisdiction is the power of a court to adjudge certain matters and to act on facts alleged. Timmons v. McCauley , 71 Ark. App. 97, 100-01, 27 S.W.3d 437, 439-40 (2000). A court that acts without subject-matter jurisdiction or in excess of its power produces a result that is void and cannot be enforced. Id. , 27 S.W.3d at 440 ; see also Jonesboro Healthcare Ctr., LLC v. Eaton-Moery Envtl. Servs., Inc. , 2011 Ark. 501, at 9, 385 S.W.3d 797, 802 ; Villines v. Harris , 362 Ark. 393, 398, 208 S.W.3d 763, 767 (2005) (holding that actions taken by a court without jurisdiction are null and void). Because the circuit court entered the default-judgment order without subject-matter jurisdiction, we reverse and dismiss it.
Stan's third point on appeal is a challenge to the circuit court's finding that he waived his challenge to the lack of subject-matter jurisdiction by failing to answer the complaint and asserting the exclusive-remedy provision as an affirmative defense. Subject-matter jurisdiction cannot be conferred on a court by waiver.
Jonesboro Healthcare , 2011 Ark. 501, at 7, 385 S.W.3d at 801 (citing Pederson v. Stracener , 354 Ark. 716, 719, 128 S.W.3d 818, 819 (2003) ). "This court has made it clear that subject-matter jurisdiction is always open, cannot be waived, can be questioned for the first time on appeal, and is a matter this court is obliged to raise on its own when the parties do not." Id. , 385 S.W.3d at 801 (citing Pederson , 354 Ark. at 719, 128 S.W.3d at 819 ). Accordingly, Stan did not and could not waive his challenge to the circuit court's subject-matter jurisdiction.
Vences relies on Arkansas Rule of Civil Procedure 8(c) that provides when responding to a complaint, a party shall set forth affirmative defenses such as "exclusiveness of remedy under workmen's compensation law." Ark. R. Civ. P. 8(c) (2018). However, Stan did not file an answer. Instead, a default judgment was entered against him. Our supreme court held in Entertainer, Inc. v. Duffy that a defaulting defendant may not introduce evidence to defeat a plaintiff's cause of action, but the defaulting defendant can challenge the judgment based on the circuit court's lack of subject-matter jurisdiction. 2012 Ark. 202, at 8, 407 S.W.3d 514, 519. Accordingly, we hold that the circuit court erred in finding that Stan waived the exclusive-remedy defense.
Reversed and dismissed.
Gladwin and Glover, JJ., agree.
Stan admitted in his deposition that his wife was served with the complaint. Stan further testified that he paid premiums for workers'-compensation coverage; he knew he had workers'-compensation insurance; he thought Vences's accident was covered; and he thought his insurance agent and his workers'-compensation carrier would file an answer for him. He testified that after he was served, he went to his agent's office and showed her the papers. He said that his agent told him that she would report the accident to the carrier. He further stated that he faxed some paperwork to the carrier in July 2014. He admitted that he did not follow up with his either agent or the carrier.
The court vacated the $ 25,221 penalty.
A copy of the workers'-compensation policy was attached to the motion and shows that coverage was effective October 17, 2013, to October 17, 2014.
A copy of the Commission's webpage verifying Stan's workers'-compensation coverage on November 21, 2013, was attached to the motion.
The allegation that Stan "failed to provide workers' compensation benefits for his employees" could mean that the Act applied but that Stan did not pay the benefits or that Vences was not entitled to benefits for any number of reasons. | [
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ROBERT J. GLADWIN, Judge
Chelsi Isbell and her mother, Janet Nicholas, appeal the Logan County Circuit Court's order terminating Chelsi's parental rights to A.I. (born June 20, 2016) and denying Janet's custody petition. Chelsi argues that (1) the circuit court erred by terminating her parental rights; (2) the circuit court abused its discretion by denying her motion for continuance; and (3) appellee Arkansas Department of Human Services (DHS) failed to make reasonable accommodations for her in accordance with the Americans with Disabilities Act (ADA). Janet argues that the circuit court clearly erred by (1) refusing to place the child with her and (2) terminating Chelsi's parental rights. We affirm.
I. Facts
DHS filed for emergency custody and dependency-neglect on March 10, 2017, and the attached affidavit alleged that police officers had encountered Chelsi walking down the street with A.I. Chelsi told them she was going to the store to get formula for the baby and that she had no food or running water at home. She told them she did not have money and that she planned to steal the formula. The officers went to Chelsi's home to do a welfare check. Chelsi told them she did not have family. When they asked her if Janet was her mother, she said that Janet was a woman who had moved her from Little Rock to Logan County to find a house and that she did not know Janet. Chelsi said that her water had been turned off for two weeks and that her electricity would be turned off soon. When told that DHS would take A.I. into custody, Chelsi was not upset or concerned, and she said, "Ok, what about me?" The ex parte order followed.
Chelsi stipulated to the emergency conditions necessitating removal at a probable-cause hearing on March 17. She was granted supervised visitation and ordered to undergo drug screening; attend parenting classes; obtain a psychological evaluation; attend counseling; watch "The Clock is Ticking" video; and obtain stable housing, income, and transportation. DHS was ordered to consider any appropriate family member for A.I.'s placement. Janet filed a motion to intervene on May 2 asking that she be granted visitation and custody as A.I.'s grandparent. Attached to the intervention motion was a custody petition alleging that she had a significant relationship with A.I., that DHS had arbitrarily rejected her for family placement, and that it was in the child's best interest to be placed in her custody.
A hearing on May 2 resulted in a second probable-cause order finding that A.I. was dependent-neglected and that she had been subjected to inadequate food, environmental neglect, and failure to protect. The goal was set for reunification, and Chelsi was ordered to submit to a drug-and-alcohol assessment and follow the recommendations; visit A.I. regularly; comply with her case plan; and remain in contact with her caseworker. DHS was ordered to conduct a home study on Janet.
At the June review hearing, the circuit court found that A.I. continued to need services and ordered that she remain in DHS custody. The goal remained reunification, and the court noted that Chelsi had not contacted DHS since the last hearing or allowed DHS entry into her home, nor had she attended her psychological-evaluation appointment. Janet was permitted to intervene in the case, and the court noted its concerns about Janet, including her problem with alcohol. Janet had a second DUI within a five-year period in March 2015, and her driver's license was suspended, after which an interlock device was placed on her vehicle. The court also found that she owned Nick's Village Pub, which was a bar that served alcohol and was open until 5:00 a.m.; however, Janet had testified that she did not believe it was a bar.
A hearing was held on October 17, and the circuit court found that Janet was "skating the issue on her alcohol use." The hearing was continued until December 5, and at its conclusion, the court ordered that the goal of the case be changed to adoption with DHS to file a petition for termination of parental rights. The court found that DHS had made reasonable efforts and that
8. The mother, [Chelsi], has not complied with the case plan in that she has no income, she failed to show for her hair-follicle appointment, she failed to show up for her psychological-evaluation appointment, she failed to start counseling or parenting classes, she has not contacted [DHS], and she has not visited her child since the case started. She was involuntarily committed by the State of Arkansas in July and spent seven days in acute care.
9. The Court heard testimony at this hearing from the following witnesses in regards to Janet Nicholas's petition for custody: Cynthia Cagle, a licensed social worker and therapist who evaluated Janet, her home, and business for a SAFE home study; Dr. Kenneth Counts, a psychologist and neuropsychologist, who evaluated Janet; and Janet, the grandmother. The Court also considered the testimony from FSW Pam Feemster and Janet Nicholas from October 17, 2017, when this review hearing started. The Court considered the Petition of the Intervenor, Janet Nicholas for custody of the minor child and completely denied her any relief, and ordering her dismissed with prejudice from the case and from further participation in it.
12. [sic] The Court made the following findings based upon the testimony and evidence: The Court will not place [A.I.] with Janet due to her minimization of her use of alcohol and her dishonesty and lack of details in her testimony to the Court and others about her history of alcohol use, driving-while-intoxicated convictions, and her ownership of a pub. Cynthia Cagle, who evaluated Janet for a SAFE home study, reported that Janet told her that she had a DWI in 2012 and has not been arrested since. She told Dr. Counts that she had one DWI. But, she testified at the October l7th hearing that she actually had three DWIs, one in 2003, one in 2012, and the last one in Saline County or Searcy in 2015. At today's hearing, the Court found out that the 2015 DWI was in Pope County, not Saline County or Searcy, and that Janet had a fourth DWI in Greers Ferry in 2007 that she failed to testify about at the October 27th [sic] hearing. The Court also noted that Janet testified previously that she owns Nick's Village Pub and that it was a restaurant and not a bar but then acknowledged that it stays open to 5:00 a.m. in the morning. It sells alcohol, and has a happy hour. Janet is not participating in any after care like AA meetings or counseling for alcohol issues and testified today that she does not have an alcohol problem. Also, Janet is enabling her daughter, Chelsi, who has not come forward to the Court. The Court finds that even though there is a statutory presumption for relative placement, [A.I.] cannot be safely placed with Janet and that it is in the best interests of [A.I.] to remain in her current foster-home placement.
The order was filed on January 5, 2018, with a Rule 54(b) certificate attached. Ark. R. Civ. P. 54(b) (2018). Janet appealed; however, this court dismissed her appeal without prejudice. Nicholas v. Ark. Dep't of Human Servs. , 2018 Ark. App. 471, 561 S.W.3d 752.
In the meantime, DHS petitioned for termination of Chelsi's parental rights, alleging abandonment, failure to remedy the conditions that caused removal, and aggravated circumstances. Ark. Code Ann. § 9-27-341(b)(3)(B)(iv), (vii)(a ), and (ix)(a ) (Supp. 2017). Chelsi moved to dismiss the petition based on deficient service. In response, DHS filed a motion to continue, allowing Chelsi more time to respond to the termination petition. See Ark. R. Civ. P. 12(a)(1) (2018) (an incarcerated defendant has sixty days to file an answer after being served). Chelsi also filed a motion to dismiss, arguing that DHS sought to discriminate against her based on a disability protected by the ADA. She asked that Arkansas Code Annotated section 9-27-341(b)(3)(B)(iv), (vii)(a ), and (ix)(a ) be declared discriminatory and violative of the ADA because of the disparate impact as applied to her. The circuit court did not rule on this motion. On April 4, Janet filed a petition for custody alleging that since her dismissal, a material change in circumstances "concerning the statutorily preferred relative placement for custody" had occurred.
On April 27, Chelsi's counsel was substituted by order. Chelsi moved for a continuance on May 1, arguing that the hearing was set for May 2 and that she was "inpatient" at Quality Living Center for substance-abuse and mental-health issues. She claimed to be mentally incapable of attending and assisting her counsel at the May 2 hearing. Attached was a letter from Quality Living Center verifying Chelsi's treatment, and a letter from Dr. Mary Jo McLin recommending that Chelsi not be released to attend court.
At the start of the May 2 termination-of-parental-rights hearing, the circuit court stated that Janet should have filed a motion to intervene because her original petition for custody had been denied and dismissed with prejudice. The court allowed her to proceed on her new custody petition without filing an intervention motion. The court stated, "So, I'm going to deny that," apparently referring to Janet's oral motion to intervene.
The court noted its inclination to deny Chelsi's "late" motion to continue but allowed her counsel to argue the motion. After the court's mistaken belief that Chelsi had received a continuance in the past was corrected, the court noted that the case had been continued due to both her former counsel's membership in the Arkansas legislature and DHS's motion for continuance. After hearing argument, the court denied the continuance, stating in part:
[Chelsi] did not come to the adjudication. She did not come to any review hearings. The only time she has appeared in this court, other than the probable cause hearing, was when she was with Ms. Capp and she was incarcerated on February the 5th. That is the only time she has appeared in this Court. And as I understand it, you want me to delay this matter, how long? Ninety days or indefinitely? How long? How long do you want me to delay this matter? I want something concrete. How long is this child's permanency going to be delayed by continuing this hearing? I want you to tell me exactly how long you want me to delay it. And can you assure me, if I delay it, that your client will participate when she has not participated in this case from day one?
Thereafter, Janet argued her custody petition, claiming that since the court's ruling dismissing her, she had addressed the court's concerns about her bar ownership and alcohol use. Janet said that she had divested herself of all interest in her bar and that she is paid $ 2000 a month for her equity in it. She said that she had been to nineteen AA meetings since December 2017 and had continued counseling with Dr. Counts. Janet said that her mother needs around-the-clock care and that she is the only person providing that care. She said that in anticipation of obtaining custody of A.I., she had hired someone to help. Pamela Feemster testified that she is a family service worker for DHS and that Janet was denied provisional placement due to her criminal history and background checks. The court ruled that Janet was not a proper placement for A.I. and that it would not be in A.I.'s best interest to be placed with her. Janet was again dismissed from the case.
After the circuit court heard testimony on the termination petition, DHS and the attorney ad litem recommended that Chelsi's parental rights be terminated. The court ruled that A.I. is adoptable and that termination was in her best interest, and it found that A.I. had been adjudicated dependent-neglected and had been out of the care and custody of Chelsi for more than twelve months; despite a myriad of services offered by DHS, Chelsi had not availed herself of the services; Chelsi had not seen the child since March 2017; Chelsi manifested the incapacity or indifference to remedy the circumstances that brought A.I. into care; Chelsi had not had contact with the caseworker since June 2017; Chelsi had been incarcerated for four to five months during the pendency of the case; Chelsi was in rehab, but the court did not know for how long; and there were aggravated circumstances in that there was little likelihood of reunification. Chelsi and Janet appealed.
II. Standard of Review
Arkansas Code Annotated section 9-27-341(b)(3) requires that an order terminating parental rights be based on clear and convincing evidence. Section 9-27-341(b)(3)(A) requires a finding that termination is in the best interest of the juveniles, including consideration of the likelihood that they will be adopted and the potential harm caused by returning custody of them to the parent. The order terminating parental rights also must be based on one or more of the grounds for termination listed in section 9-27-341(b)(3)(B).
Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Camarillo-Cox v. Ark. Dep't of Human Servs. , 360 Ark. 340, 201 S.W.3d 391 (2005). When the burden of proving a disputed fact is by clear and convincing evidence, the question that must be answered on appeal is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence was clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. Such cases are reviewed de novo on appeal. Calahan v. Ark. Dep't of Human Servs. , 2013 Ark. App. 508, 429 S.W.3d 372. However, we do give a high degree of deference to the circuit court, as it is in a far superior position to observe the parties before it and to judge the credibility of the witnesses. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001).
III. Chelsi's Appeal
A. Sufficiency of the Evidence
Chelsi claims that DHS failed to meet its burden of proof on its petition for termination of parental rights. Chelsi admits that the caseworker was correct in stating that she was not in compliance with the case plan, but she claims that extenuating circumstances should have been considered. She argues that the circuit court never mentioned the statutorily preferred possibility of placement of the child with a relative, i.e., Janet, when it made its best-interest analysis. She contends that she cannot dispute the circuit court's findings as to her condition "from and after" the date A.I. was removed from her custody; however, she claims there was evidence that she had undertaken, on her own and at her own cost, treatment designed to remedy the issues that led to removal.
Chelsi points to the evidence regarding her whereabouts throughout the case and DHS's provision of services to her. She argues that her location and addresses were contained in the court report; nonetheless, DHS caseworker Feemster testified that she did not know where Chelsi was and that DHS was never provided her address. Feemster admitted that she had made no contact with Chelsi while she was in jail and had made no inquiries about the services being offered to Chelsi at Quality Living. Chelsi points to Janet's multiple attempts to contact DHS with no results, and Janet's contention that DHS made no effort to provide services to Chelsi. She argues that during the case, she was either mentally imbalanced, using drugs, in jail, or receiving inpatient treatment. Thus, she claims that it was unreasonable to expect her to participate in and complete the case plan without DHS's help.
Chelsi relies on Cranford v. Arkansas Department of Human Services , 2011 Ark. App. 211, 378 S.W.3d 851, which held that termination did not provide greater stability to a child who had been in the custody of his grandparents and would continue to reside with them regardless. Chelsi claims that her case is the mirror image of Cranford because Janet should have been the person with whom A.I. was placed during these proceedings. She argues that under Arkansas Code Annotated section 9-27-359(b) (Repl. 2015), it is improper to seek termination of parental rights if the child is being cared for by a relative, and the relative is willing to pursue adoption, guardianship, or permanent custody. She contends that had the court placed A.I. with Janet, termination of parental rights would not have been an option. She also contends that under section 9-27-359(b)(3), termination is not an option when it is shown that DHS has not provided the services required for reunification. She argues that the record is clear that DHS had no desire or intent to reunify this family and that termination of parental rights was always its goal.
Chelsi's appeal never directly challenges the sufficiency of the evidence supporting the statutory grounds the circuit court found to terminate her parental rights. Therefore, she abandons any challenge to those findings on appeal. Thomas v. Ark. Dep't of Human Servs. , 2018 Ark. App. 355, 553 S.W.3d 175. To the extent her argument attacks the statutory grounds, she argues only that she was not provided services. Therefore, Chelsi waived any argument relating to the aggravated-circumstances or abandonment grounds because neither requires DHS to offer services. Willis v. Ark. Dep't of Human Servs. , 2017 Ark. App. 559, 538 S.W.3d 842. Because there is no challenge to the circuit court's aggravated-circumstances or abandonment findings, the decision must be affirmed.
Chelsi also failed to expressly challenge the circuit court's best-interest finding. She did not contest either the adoptability prong or the potential-harm prong of the best-interest analysis. Thus, this court need not review those findings. Benedict v. Ark. Dep't of Human Servs. , 96 Ark. App. 395, 242 S.W.3d 305 (2006). Accordingly, we affirm.
B. Motion for Continuance
In Basham v. Arkansas Department of Human Services , 2015 Ark. App. 243, at 8, 459 S.W.3d 824, 829, we stated,
A trial court shall grant a motion for continuance only upon a showing of good cause and only for so long as is necessary. Jones-Lee v. Ark. Dep't of Human Servs. , 2009 Ark. App. 160, at 23, 316 S.W.3d 261, 273. The granting or denial of a motion for continuance is within the sound discretion of the trial court, and that court's decision will not be reversed absent an abuse of discretion amounting to a denial of justice. Id. , 316 S.W.3d at 273. Additionally, the appellant must show prejudice from the denial of a motion for continuance. Id. , 316 S.W.3d at 273.
In its order terminating parental rights, the circuit court found as follows:
[W]hile the mother is currently absent from this hearing because she is participating in an inpatient drug treatment program, she is NOT legally prohibited from leaving the program for the few hours necessary to appear before this court and participate in this hearing; nor does this court have any reason to believe there are any other legal bars to the mother's ability to be present for this hearing. Her absence, then, is voluntary-and therefore not a proper ground for continuing the hearing. Furthermore, the court finds that the motion for continuance, which was filed and submitted the day before this hearing, is an "eleventh hour" motion, and that granting it without compelling cause would be adverse to the interests of justice and unnecessarily delay the establishment of permanency for the juvenile.
In her argument that the circuit court abused its discretion by denying her continuance motion, Chelsi points to the circuit court's statements, questions of counsel, and misapprehension of the procedural history of the case. Chelsi admits that her motion was filed at the "eleventh hour," but she argues that it was filed on the same day her counsel learned that Chelsi was in no condition to appear in court, and her doctor had forbidden it.
She contends that a motion for continuance should be granted upon a showing of good cause. See Butler v. Ark. Dep't of Human Servs. , 2010 Ark. App. 570, 2010 WL 3422456. The appellant must show prejudice from the denial of a motion for continuance. Id. at 6 (citing Smith v. Ark. Dep't of Human Servs. , 93 Ark. App. 395, 401, 219 S.W.3d 705, 708 (2005) ). She contends that prejudice abounds in this case because she was denied the chance to explain why she had not previously complied with the case plan and that, on her own, she was making real progress toward remedying the situation. She argues that under the Fourteenth Amendment to the United States Constitution, she was deprived of due process and of her liberty interest in the care and custody of her child. See Washington v. Glucksberg , 521 U.S. 702, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) ; Meyer v. Nebraska , 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923).
Chelsi claims that the circuit court wanted to close the case, but she argues that under section 9-27-359(b)(3), DHS had not provided services to her. Thus, she contends that DHS was not authorized to file a petition for termination. Further, she claims that DHS was "dead set" against relative placement and that the "true" plan was not reunification. She claims that a rush to close a case file in order to put a child up for adoption should not trump her right to try to remedy her problems and become the parent she should have always been.
DHS argues that the circuit court did not abuse its discretion by denying the continuance motion. We agree. The circuit court did not act improvidently or without due consideration when it denied the request because the ultimate goal of the termination statute is to provide permanency for the minor child. Martin v. Ark. Dep't of Human Servs. , 2015 Ark. App. 407, 465 S.W.3d 881. In Butler , 2010 Ark. App. 570, the circuit court had denied a parent's request for continuance because she could not be present at the termination hearing. This court noted that there was no evidence or testimony offered to demonstrate the likelihood of appellant's attendance in the event a continuance was granted and that the appellant was represented throughout the termination proceeding. Id. at 3. The same is true herein. Further, Chelsi failed to prove prejudice because she did not show how her presence at the hearing would have changed the outcome. Sanderson v. Ark. Dep't of Human Servs. , 2012 Ark. App. 481, 2012 WL 4009599.
C. ADA
Chelsi argues that DHS failed to make reasonable accommodations in accordance with the ADA. She argues that she suffered from mental-health and drug-abuse disabilities that caused removal and that DHS did nothing to help her other than to tell her that help was available. However, Chelsi did not make that argument or even mention the ADA at the termination hearing. Nor did she argue or obtain a ruling about specific reasonable accommodations under the ADA or raise any other element of the ADA, each of which are essential inquiries in the application of the ADA. Oldham v. Ark. Dep't of Human Servs. , 2015 Ark. App. 490, 469 S.W.3d 825. Further, she did not obtain a ruling on her motion to dismiss wherein she had argued that the ADA was applicable. See Burnett v. Ark. Dep't of Human Servs. , 2011 Ark. App. 596, 385 S.W.3d 866. Accordingly, her ADA argument is not preserved for appellate review.
IV. Janet's Appeal
A. Placement with Grandparent
Janet contends that the circuit court's refusal to place the child with her, the biological grandmother, was clearly erroneous and founded upon errors of law. Juvenile proceedings are equitable in nature; therefore, our standard of review on appeal is de novo. Rose v. Ark. Dep't of Human Servs. , 2010 Ark. App. 668, 2010 WL 3902858. The circuit court's findings of fact are not reversed unless they are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, on the entire evidence, is left with a definite and firm conviction that a mistake has been made. Id.
Janet recites the procedural history of the case. She asserts that the July 20 order allowed her intervention and found that her hot-check felony conviction had been expunged, that her driver's license had been reinstated, that she owned Nick's Village Pub, and that the court was concerned about her history with alcohol and her bar ownership. Janet points to Cynthia Cagle's home study that recommended she be approved for A.I.'s placement and to her psychological evaluation, performed by Dr. Kenneth Counts, who opined that she has an excellent understanding of parenting skills and that her alcohol consumption is not a problem. DHS caseworker Feemster testified that the home study recommended placement with Janet but that she believed Janet was enabling Chelsi and that she could not recommend placement with her because a provisional home study previously had been denied.
Janet stresses that she followed the circuit court's orders without DHS's help. When questioned by the court about why the home study recommending placement did not contain some information regarding her DWIs, Janet said that she had assumed DHS had provided all the information to the caseworker. During the hearing held December 5, 2017, Janet introduced an Arkansas DFA traffic-violation report that reflected one DWI conviction on March 2, 2016. When the court asked whether the additional DWIs not included in the home study would change her recommendation, Cagle suggested that Janet be randomly tested and attend AA meetings. Janet also points to Dr. Counts's opinion that she did not have an alcohol problem. She contends that despite this evidence, the circuit court changed the case plan to adoption and denied her any relief, dismissing her from the case and noting that she (1) had minimized her alcohol use, (2) had been dishonest about her DWIs and bar ownership, (3) had denied an alcohol problem and was not participating in AA or counseling, and (4) was enabling Chelsi.
After the termination petition was filed, Janet filed another petition for custody, claiming that she had addressed the issues relied on by the circuit court in dismissing her from the case. She asserted that she had completed a psychological assessment, a drug-and-alcohol assessment, parenting classes, and a home study. She claimed that she had been attending AA meetings, had divested herself of interest in the "bar," and had continued counseling with Dr. Counts. She testified that she had spent more than $ 20,000 trying to comply with the court's orders because DHS had not offered her services. She told the court that since its ruling dismissing her petition, she had thought about her drinking and wanted to work to solve the issue to obtain custody of A.I. Janet contends that the only evidence offered against her was the caseworker's testimony that DHS had denied placement with her because of her criminal history and background checks and that alternative placement had been denied by an agency board in Little Rock. Nevertheless, the circuit court denied her petition as not in the child's best interest, finding that her testimony lacked candor during the hearing and that she was still enabling her daughter.
Janet argues that it is the State's public policy to preserve and strengthen the juvenile's family ties when it is in the best interest of the juvenile. Ark. Code Ann. § 9-27-302(2)(A) (Repl. 2015). Also, relative placement should be given preferential consideration when the relative caregiver meets all relevant child-protection standards and it is in the best interest of the child. See Ark. Code Ann. § 9-27-355(b)(1) (Supp. 2017); Ark. Code Ann. § 9-28-105 (Repl. 2015). And under Ellis v. Arkansas Department of Human Services , 2016 Ark. 441, 505 S.W.3d 678, the statutory preference applies throughout the case, not only to the initial placement. Thus, Janet argues that DHS's reason for not recommending her based on denial of their initial placement bears little weight. Janet contends that Cagle recommended she be approved for placement and that Counts opined that alcohol consumption was not a problem. She claims that DHS presented no expert testimony to rebut these opinions, and she submits that the evidence overwhelmingly shows that she meets all the relevant child-protection standards and that it is in A.I.'s best interest to be placed with her.
She cites Guthrey v. Arkansas Department of Human Services , 2017 Ark. App. 19, 510 S.W.3d 793, for the proposition that lack of credibility, standing alone, does not amount to a failure to remedy sufficient to terminate parental rights. She argues that her lack of candor about her past DWIs and her refusal to completely abandon her only child is not enough to terminate her familial rights to A.I., which is the net effect of the circuit court's order. Janet also cites Rhine v. Arkansas Department of Human Services , 2011 Ark. App. 649, 386 S.W.3d 577, wherein this court reversed termination of parental rights that was founded on the father's consumption of alcohol in violation of his parole and the circuit court's order prohibiting it. We held that the father's few lapses in judgment did not present a real risk of potential harm or that the child's best interests would be served by having her father permanently removed from her life. Rhine , 2011 Ark. App. 649, at 11, 386 S.W.3d at 583. Janet argues that she had no lapses relating to alcohol during the pendency of this case. Further, she has continued to attend AA meetings and counseling since the January 5, 2018 order dismissing her from the case. She claims, as in Rhine , that there was no evidence to show a risk of potential harm to A.I. if placed in her custody.
Finally, Janet contends that she only enabled her daughter only by helping her get her life back together. She claims that DHS did not contact Chelsi after June 6, 2017, yet DHS knew that Chelsi was in jail. Further, she claims that DHS did nothing to determine what kind of services Chelsi received in the clinic or to check on her mental-health progress. She argues that if the circuit court is concerned with her enabling Chelsi, she could be subjected to DHS monitoring.
DHS and the attorney ad litem contend that Janet is asking this court to reweigh the evidence before the circuit court. We agree. It is well settled that we will not reweigh the evidence on appeal, and credibility determinations are left to the circuit court. Blasingame v. Ark. Dep't of Human Servs. , 2018 Ark. App. 71, 542 S.W.3d 873. The circuit court regarded Janet's testimony about her DWIs and the amount of alcohol she consumed as vague and conflicting. In Davis-Lewallen v. Clegg , 2010 Ark. App. 627, 378 S.W.3d 185, we held that the preference given a relative is honored only if placement with them is in the child's best interest. In Davis-Lewallen , the grandmother had petitioned for guardianship, and the foster parents had petitioned for adoption. This court held that it was within the province of the circuit court to find that a home study approving placement of the child with the grandmother was not credible because the grandmother had failed to provide information to a caseworker who had prepared the study. Davis-Lewallen , 2010 Ark. App. 627, at 6, 378 S.W.3d at 189.
Here, the home study recommending placement with Janet was not based on all the information regarding Janet's DWIs because she failed to provide that information. Further, Dr. Counts stated that information that Janet had more than one DWI would be concerning. Also, Janet testified on three occasions that she had three DWIs; however, she admitted at the hearing on December 5, 2017, that she had a fourth DWI. Regarding Janet's enablement of Chelsi, the circuit court noted that Janet continued to support and provide for Chelsi even though Chelsi refused to come to court, meet with her attorney, or accept services from DHS. At the May 2, 2018 hearing, Janet testified that she was no longer providing for Chelsi and that it was her mother who was paying for Chelsi's attorney's fees. However, later testimony revealed that Janet's mother has dementia, requires twenty-four-seven care, which Janet provided, and had essentially turned all of her finances over to Janet. Thus, in the order denying Janet's second petition for custody, the court reiterated its finding that Janet continued to enable Chelsi. After reviewing the evidence and the record below, we are not left with a definite and firm conviction that the circuit court made a mistake, and we affirm.
B. Services for Chelsi
Janet argues that the termination-of-parental-rights order should be reversed and that the case should be remanded for DHS to provide further services for Chelsi. However, we agree with both DHS and the attorney ad litem's arguments and hold that Janet does not have standing to challenge the termination of Chelsi's parental rights. First, they argue that Janet was not a party because the circuit court denied her oral motion to intervene at the May 2, 2018 hearing after she had been dismissed from the case pursuant to the January 2018 order. See Stricklin v. Ark. Dep't of Human Servs. , 2017 Ark. App. 441, 528 S.W.3d 321. Her pending motion for custody was heard on May 2, but DHS and the ad litem contend that the information in the record is not sufficient to show that she was granted party status. We agree that the record here is not clear. However, we agree with their second contention as well-even if she is considered a party, Janet lacks standing to assert the violation of another party's rights. See, e.g. , Cole v. Ark. Dep't of Human Servs. , 2018 Ark. App. 121, 543 S.W.3d 540.
Affirmed.
Murphy and Brown, JJ., agree.
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WAYMOND M. BROWN, Judge
The Benton County Circuit Court terminated the parental rights of appellant Donald Adams to his three children, J.A. (DOB 01-31-01), D.A. (DOB 06-17-08), and H.A. (DOB 11-19-10). Adams appeals, arguing that the trial court (1) violated Rule 6(c) of the Arkansas Rules of Civil Procedure when it granted DHS's motion, that was filed only six days prior to the hearing, and without giving appellant his full time to respond; and (2) committed reversible error when excluding appellant from the courtroom during the testimony of his accuser where the adjudication and termination orders were based in large part upon the accuser's credibility. We affirm.
Appellant does not challenge the sufficiency of the termination. Therefore, only a brief recitation of the facts is necessary. The Arkansas Department of Human Services (DHS) removed the children from appellant's home on January 29, 2018, as a result of allegations that appellant sexually and physically abused at least one of his children. DHS filed a petition for emergency custody and dependency-neglect on February 1, 2018. The court entered an ex parte order for emergency custody on February 2, 2018. On March 15, 2018, DHS and the attorney ad litem filed a joint petition for the termination of appellant's parental rights. DHS filed a motion to exclude appellant from the courtroom during the testimony of J.A. on July 11, 2018. In the motion, DHS noted that the adjudication and termination hearings were scheduled for July 17, 2018. At the beginning of the hearings, DHS informed the court of its pending motion to have appellant excluded from the courtroom during J.A.'s testimony. DHS suggested that appellant be allowed to watch the testimony from a different room. At that time, the following colloquy took place:
FATHER'S ATTORNEY : And, Your Honor, for the record, we would oppose that. We would ask that he be allowed to stay in the courtroom. I have reviewed the Department's motion. I would point out to the Court that I've only had eight calendar days, and not the 10 business days authorized by the rules to respond; but I'll do my best.
Your Honor, counsel has pointed to Smith v. State , and Bertrand v. State in terms of arguing that my client is not entitled to his Sixth Amendment right to confrontation in a civil D/N matter.
I submit, Your Honor, that those cases don't articulate that it is only in criminal. They point actually to the Constitution of Arkansas and the United States to say that a person in a criminal context has the right to confront and cross-examine.
Now, Arkansas and the Court's -- particularly in Linker-Flores [v. Ark. Dep't of Human Servs. ], that's 359 Ark. 131 [194 S.W.3d 739 (2004) ] have taken criminal standards of other things such as representation of counsel, and applied them in the criminal context. That's Linker-Flores v. DHS . And have applied them in the civil D/N context, Your Honor.
So there's nothing that prohibits the Court from applying the Sixth Amendment right to confront and cross-examine to my client.
And, moreover, Your Honor, in Maryland v. Craig where they set up, the Federal Supreme Court set up the standards for confrontation and cross examination in the criminal context, they indicated that the Court can impair that, if the Court makes specific case-based findings, and the testimony can otherwise be assured to be credible.
As I understood it, they're credible, Your Honor. I submit that the Department has offered no testimony to support that, and has offered no argument with regard to the Court as to why in this particular case it's necessary, particularly given Ms. J.A.'s age. I believe she is in her late teens. She is nigh-on an adult, Your Honor.
AD LITEM : Your Honor, I would just point out that I think it's disingenuous too say that he just got this 10 days ago. I had emailed him informally on June 22, asking him if he would be agreeable to having his client watch. He said he would get back. And then I know that DHS also emailed him again on July 6.
The formal motion was sent after it was determined that he would want a formal motion. But he's known about this request -
FATHER'S ATTORNEY : And, Your Honor, the Rules of Civil Procedure don't talk about informal emails. They talk about formal motions.
....
THE COURT : ... Anyways, in regards to the confrontation clause, Arkansas law is clear that confrontation clause does not apply in civil cases -- and specifically in DHS cases, it does not apply.
However, I do agree that if I'm going to set up an alternative setting, where he'll have the right to hear and observe in a different room, I have to make certain factors that justify that. So how old is your client, Ms. Mullins?
AD LITEM : She's 17, Your Honor.
THE COURT : And why is it necessary to have the defendant leave the room for the testimony of this?
AD LITEM : I'll let the Department address that, they filed the motion.
DHS'S ATTORNEY : Judge, first of all, I would like to say I know there's a statute that allows for excluding the defendant from the courtroom in criminal cases, or putting the juvenile in -- during the hearing in camera and having her testify. I don't believe there's a similar statute with regards to civil cases.
I would also just briefly respond that there have been constitutional protections granted to persons in DHS cases, and those have been codified in Arkansas statutes. The right to confrontation has not been.
I don't think there's a statute that requires us to make certain findings, however in this case, first of all these are sexual allegations made by the witness against the defendant.
There have been efforts on his part to make contact with her in the courtroom before, even though there's a no-contact order in place.
These things that have happened are upsetting, they're hard to talk about. And I think that she would have a much better time being able to do that without him sitting looking at her in the courtroom.
FATHER'S ATTORNEY : May I respond, Your Honor?
THE COURT : Yes.
FATHER'S ATTORNEY : Yes, Your Honor. Your Honor, she's 17. She is almost an adult. Is it harder to testify about people in front of them? Yes, it is. That's the very purpose.
THE COURT : Well, let's go to the statute. Do you agree that there's a specific statute in the criminal statute, that even allows them to set up arrangements to adhere to the confrontation clause, to still let it be done in camera?
FATHER'S ATTORNEY : I'm not actually familiar with the criminal statutes in that regard. I am familiar with Maryland v. Craig , where it sets up the two-part standard.
THE COURT : Well, I'm going to note the reasoning, I don't find that that in camera statute applies in the civil case.
However, I do find there's good cause based on the nature of the allegations, the allegations for dependency neglect are that the juvenile was sexually abused by the father in this case. And I'm going to set up to where he can have sight and sound through a camera.
Make sure the video is set up in the room so he can watch the testimony then.
DHS'S ATTORNEY : And, Judge, we would certainly have no objection, you know, after her testimony, if Mr. Depper wants to go back and speak with him about questions to ask her, we would have no objection to that.
THE COURT : Mr. Depper will have that right, and also the father will have the right to send notes. I'll have a bailiff and deputy set up, if a question arises during the testimony, to allow Mr. Depper plenty of opportunity to represent his client.
FATHER'S ATTORNEY : Thank you, Your Honor.
The court found that the children were dependent-neglected due to being at substantial risk of serious harm as a result of physical abuse, sexual abuse, neglect and parental unfitness to the juveniles caused by appellant. The order was filed on August 10, 2018. The court also granted DHS and the attorney ad litem's joint petition for termination of appellant's parental rights. The termination order was filed on August 13, 2018. Appellant filed a timely notice of appeal on August 16, 2018. This appeal followed.
In cases where the issue is one of termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. On appellate review, this court gives a high degree of deference to the trial court, which is in a far superior position to observe the parties before it. Further, pursuant to Arkansas Code Annotated section 9-27-341(b)(3), an order terminating parental rights must be based upon clear and convincing evidence. Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses.
As his first point on appeal, appellant contends that the trial court violated Rule 6(c) of the Arkansas Rules of Civil Procedure when it granted DHS's motion, that was filed only six days prior to the hearing, and without giving appellant his full time to respond. This argument is not preserved for our review. At the beginning of the hearings, appellant objected to DHS's request that he be excluded from the courtroom during J.A.'s testimony; however, he did not specifically object to the timeliness of the motion. Additionally, appellant has been unable to show prejudice, as he responded to the motion at the time of the hearings and did not seek a continuance.
Appellant also contends that the court committed reversible error by excluding him from the courtroom during J.A.'s testimony where the adjudication and termination orders were based in large part upon J.A.'s credibility. More specifically, he claims that he was denied his Sixth Amendment right to confront his accuser. Our supreme court dealt with this same issue in Taffner v. Arkansas Department of Human Services . In Taffner , the mother argued that she was denied her right to confront the witnesses because the court allowed witnesses to testify as to the hearsay statements of two of her children regarding allegations of sexual abuse. The court declined to expand the Sixth Amendment guarantee in termination-of-parental-rights cases, finding that the right applies to criminal prosecutions. The same rationale holds true in this case. Appellant attempts to distinguish his case from Taffner by arguing that his case deals with face-to-face confrontation with his accuser, not ancillary testimony as was the issue in Taffner ; and that he is appealing both the adjudication and termination hearings where Taffner was simply an appeal from a termination hearing. We are not convinced that these cases are distinguishable. Additionally, appellant has failed to cite us to any authority to support his argument that a criminal defendant's Sixth Amendment confrontation rights apply in this situation. Assignments of error that are unsupported by convincing argument or authority will not be considered on appeal unless it is apparent without further research that they are well taken.
Affirmed.
Gruber, C.J., and Hixson, J., agree.
Trout v. Ark. Dep't of Human Servs. , 359 Ark. 283, 197 S.W.3d 486 (2004).
Id.
Crawford v. Ark. Dep't of Human Servs. , 330 Ark. 152, 951 S.W.2d 310 (1997).
Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001).
(Supp. 2017).
Larscheid v. Ark. Dep't of Human Servs. , 343 Ark. 580, 36 S.W.3d 308 (2001).
Baker v. Ark. Dep't of Human Servs. , 340 Ark. 42, 8 S.W.3d 499 (2000).
Dinkins, supra.
Camarillo-Cox v. Ark. Dep't of Human Servs. , 360 Ark. 340, 201 S.W.3d 391 (2005).
2016 Ark. 231, 493 S.W.3d 319.
See Sparrow v. Ark. Dep't of Human Servs. , 101 Ark. App. 193, 272 S.W.3d 846 (2008). | [
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] |
ROBERT J. GLADWIN, Judge
Appellant Landan Worsham appeals the entry of a conditional guilty plea against him on one count of sexual indecency with a child pursuant to Arkansas Code Annotated section 5-14-110(a)(1) (Repl. 2013). He argues that the circuit court erred in denying his motion to dismiss, which argued that section 5-14-110(a)(1), as applied, was overbroad and impermissibly infringed on and burdened his fundamental right to freedom of expression under the First Amendment to the United States Constitution and article 2, section 6 of the Arkansas Constitution. We find merit in his argument; therefore, we reverse and dismiss.
I. Facts and Procedural History
On September 6, 2017, an information was filed in which appellant was charged with sexual indecency with a child in violation of section 5-14-110(a)(1), specifically that he, "being eighteen years old at the time, solicited another person who was less than fifteen, to engage in sexual intercourse, deviate sexual activity, or sexual contact." Appellant, who was eighteen years old at the time, and his then fourteen-year-old girlfriend, Z.R., sent text messages and social media posts to one another in which he solicited sex with her. At least one text message was apparently provided in discovery, but no text messages or social media posts were introduced in the circuit court proceedings or are part of the record on appeal.
Appellant filed a pretrial motion to dismiss, alleging that section 5-14-110(a)(1), as applied, was unconstitutional in that it punished speech about lawful activity-specifically that it criminalized appellant's expression in words of his desire to have sex with Z.R., which is a legal act under Arkansas law. As required, appellant also sent notice to the Arkansas Attorney General that he was challenging the constitutionality of section 5-14-110(a)(1).
In response, the State claimed that it has a special interest in protecting the well-being of its youth, citing New York v. Ferber , 458 U.S. 747, 102 S.Ct. 3348, 73 L.Ed.2d 1113 (1982). The State argued that the challenged solicitation provision of the statute was aimed at "protecting the emotional, social, mental, and physical well-being of children" and that the provision was "narrowly tailored to its rationale"-in that it does not prohibit adults from soliciting children fifteen years or older; it does not prevent adults from speaking generally with children fourteen years or younger; it only prevents adults from attempting to solicit sexual intercourse, sexual contact, or deviate sexual activity with children fourteen years or younger.
On February 12, 2018, there was a hearing on appellant's motion, with no testimony presented. The circuit court held that "[t]he State's special interest in protecting [minors under the age of fifteen] from indecent speech or conduct substantially outweigh[ed] [appellant's] expressive interest to communicate the same." The motion was denied by order on March 6, 2018, and the following day, appellant entered a conditional guilty plea to sexual indecency with a child, preserving his ability to appeal the circuit court's denial of his motion to dismiss, which is now before us. See Ark. R. Crim. P. 24.3(b)(iii) (2017).
II. Standard of Review and Applicable Law
This appeal raises the question of whether the circuit court erred when it found that Arkansas Code Annotated section 5-14-110(a)(1) was not overbroad and did not impermissibly infringe upon the constitutionally protected speech of appellant. Both the circuit court's interpretation of the constitution as well as the issues of statutory interpretation are reviewed de novo. Wyly v. State , 2018 Ark. App. 505, 559 S.W.3d 326.
The conduct of solicitation involved in this appeal constitutes speech, and freedom of speech involves a fundamental right guaranteed by the First and Fourteenth Amendments to the United States Constitution, as well as article 2, section 6 of the Arkansas Constitution. The standard of review on constitutional challenges of fundamental rights are reviewed under strict scrutiny, which means it cannot pass constitutional muster unless it provides the least restrictive method available that is narrowly tailored to accomplish a compelling State interest. Arnold v. State , 2011 Ark. 395, 384 S.W.3d 488 ; see also Sable Commc'ns of Cal. v. F.C.C. , 492 U.S. 115, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989).
Arkansas statutes are presumed constitutional, and the challenger of the statute must prove otherwise. Ray v. State , 2017 Ark. App. 574, 533 S.W.3d 587. If it is possible to construe a statute as constitutional, we must do so. Boose v. State , 2017 Ark. App. 302, 523 S.W.3d 366.
III. Discussion
Appellant argues that because the challenged statute prohibits his right to free speech about lawful conduct-a fundamental right under both the United States and Arkansas Constitutions-it is subject to strict scrutiny, meaning it cannot pass constitutional muster unless it provides the least restrictive method available that is narrowly tailored to accomplish a compelling State interest. Arnold , supra. Although the State does not dispute that assertion regarding speech soliciting lawful conduct, it does argue that the solicitation speech involved here is unprotected obscenity, such that a strict-scrutiny analysis does not apply. We disagree.
The First Amendment permits "restrictions upon the content of speech in a few limited areas, which are 'of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.' " R.A.V. v. City of St. Paul, Minn. , 505 U.S. 377, 382-83, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (quoting Chaplinsky v. New Hampshire , 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) ). These classes of unprotected speech include defamation, incitement, obscenity, and child pornography. See Ashcroft v. Free Speech Coal. , 535 U.S. 234, 246, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002) ; see also Roth v. U.S. , 354 U.S. 476, 485, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957) (holding that "obscenity is not within the area of constitutionally protected speech or press"). The United States Supreme Court has "long held that obscene speech-sexually explicit material that violates fundamental notions of decency-is not protected by the First Amendment." United States v. Williams , 553 U.S. 285, 288, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). The court in Miller v. California , 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), set forth a three-part test to determine what constitutes obscenity:
(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
(internal citations and quotations omitted).
The State submits that pursuant to Miller , section 5-14-110(a)(1) is not unconstitutional because it restricts obscene speech that is not afforded First Amendment protections because it concerns prurient interest in sex with minors by an adult. Prurient interest is "[c]haracterized by or arousing inordinate or unusual sexual desire."Black's Law Dictionary 1263 (8th ed. 2004) (defining prurient). Communications appealing to the prurient interest are those that involve "a shameful or morbid interest in nudity, sex, or excretion" and not those that "provoke only normal, healthy sexual desires." Brockett v. Spokane Arcades, Inc. , 472 U.S. 491, 498, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985).
The Miller test requires a fact-intensive inquiry on a case-by-case basis, and because the text(s) in question are not part of the record before us, it is impossible for us to determine whether the solicitation speech in question "depict[ed] or describe[d], in a patently offensive way, sexual conduct specifically defined by the applicable state law." Miller , 413 U.S. at 24, 93 S.Ct. 2607. The State does not allege any pornography or the sharing of any pornographic pictures between appellant and Z.R. The affidavit attached to the information states that officers examined Z.R.'s phone and observed messages between appellant and Z.R. in which appellant stated, "[H]e thought she was cute, but he knew she would be jailbait due to her age and they could not talk about their relationship because he would have to register as a sex offender."
Moreover, the Court has repeatedly rejected arguments that material involving children is "inherently" obscene. See Ashcroft , supra (invalidating a federal law that prohibited "virtual child pornography"); see also Brown v. Entertainment Merchs. Ass'n , 564 U.S. 786, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011) (rejecting California's claim that violent and sexually explicit video games marketed to children were obscene).
Although the State's argument regarding whether the speech at issue constitutes obscenity is intensely fact specific, it neither included the specific texts and/or social media posts between appellant and Z.R. in the record nor made this argument below or in any way included the specific speech in its appellate brief before us. Not only have we failed to locate any recent case in which written descriptions of sexual acts have been found to constitute unprotected obscenity-which at most is what is at issue here-we have no specific speech before us that can be appropriately analyzed under Miller , supra. Accordingly, we hold that the speech in question is protected under the United States and Arkansas Constitutions; therefore, we must review the case under strict scrutiny.
Because the statute infringes on the fundamental right to free speech, the State may regulate protected speech only if such regulation is narrowly tailored to serve a compelling governmental interest. See Simes v. Ark. Judicial Discipline & Disability Comm'n , 368 Ark. 577, 247 S.W.3d 876 (2007). "The State must specifically identify an actual problem in need of solving, and the curtailment of free speech must be actually necessary to the solution." Brown , 564 U.S. at 799, 131 S.Ct. 2729 (internal citations and quotations omitted).
The State focuses on the goal of protecting children, citing Ferber , 458 U.S. at 756-57, 102 S.Ct. 3348, specifically protecting children from "having to deal with" communications from older teens and adults soliciting sex. Even if that goal constitutes a valid compelling state interest, we hold that the statute fails to satisfy the second prong of strict scrutiny because it is not narrowly tailored to achieve that goal.
The State of Arkansas could achieve its goal of protecting minors in a more narrowly tailored way by prohibiting sex between an eighteen-year-old and a fourteen-year-old. If it did so, the speech at issue in this case would be unprotected, as was held in Neely v. McDaniel , 677 F.3d 346 (8th Cir. 2012), in which the Eighth Circuit Court of Appeals rejected a similar constitutional challenge to the same statute because the sexual acts solicited by the defendant were undisputedly illegal under Arkansas law. The court noted that "[o]ffers to engage in illegal transactions enjoy no First Amendment protection." Id. at 351. The Eighth Circuit explained that a plaintiff may invoke the overbreadth doctrine on the ground that "the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression." Id. (citing Broadrick v. Oklahoma , 413 U.S. 601, 612, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973) ). In Neely , the court noted that the statute in question presented potential overbreadth concerns in that it criminalized speech soliciting legal conduct, but it held that those concerns were not implicated by the facts before it and could be addressed going forward on a "case by case basis."
This case falls squarely in that category. Appellant illustrates that the statute is not narrowly tailored, pointing out that a prior version of section 5-14-110 criminalized only solicitations of sexual conduct that would otherwise be illegal under the code. The statute was changed by Act 1821 of 2001 to cover all solicitations of sexual contact between such parties, even when the underlying conduct itself would be legal. As the prior version of the statute provides a clear example of a less restrictive alternative by which the State could achieve its stated goal, we hold that the current law fails to meet the second prong of strict scrutiny because the statute is not the least restrictive means by which to advance the government's interest.
We hold that the application of section 5-14-110 to appellant under the stipulated facts of this case was unconstitutionally overbroad in suppressing his fundamental right to engage in expression protected under both the Arkansas and United States Constitutions. Accordingly, we reverse and dismiss.
Reversed and dismissed.
Glover and Vaught, JJ., agree.
The State does not dispute that the underlying sexual activity that appellant solicited from Z.R. would have been legal for the parties to engage in; appellant could not have been prosecuted for having sex with Z.R., pursuant to Arkansas Code Annotated section 5-14-103(a)(3)(A), -125(a)(3), -126(a)(2)(A), -127(a) (Supp. 2017), as they only describe sex with someone who is under fourteen years of age or where a perpetrator is twenty years of age or more with a person under sixteen, or when the parties are related, or if the older person is in a position of trust over the other, none of which is present here. But the statute does prohibit the solicitation of even legal sexual acts. | [
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] |
BRANDON J. HARRISON, Judge
In 2016, a Ouachita County jury convicted Tommy Lee Radford on two counts of threatening a judicial officer and one count of terroristic threatening. Radford challenges the sufficiency of the State's evidence against him. He also argues that his constitutional right to a speedy trial was violated. None of Radford's arguments are preserved for review, so we must affirm his conviction without addressing the merit of his points. Although he did not challenge the length of his sentence (95 years) in this appeal, it is illegal on its face. The problem, in a nutshell, is that the sentence is too long given the habitual status that is checked on the sentencing order. More on this later. A facially illegal sentence is a matter that we routinely address on our own initiative. The conviction on every count is affirmed; but we remand the case to the circuit court for resentencing.
I.
The State's case against Radford is based on Radford's conduct after he appeared before a circuit judge, in a different criminal case, regarding a bond decision. In this case, the State's proof rests primarily on Camden police officer Ben Opelt's testimony. Officer Opelt testified that on 26 January 2015, Radford became "upset" after circuit judge Edwin A. Keaton set a $50,000 secured bond in a criminal case against Radford. Officer Opelt told the jury about vulgar verbal statements and obscene gestures that Radford had repeatedly made after exiting the courtroom once the bond decision had been made. The bad behavior escalated as the officer and Radford entered the jail portion of the court building.
A person commits the offense of first-degree terroristic threatening if, with the purpose of terrorizing another person, he or she threatens to cause death or serious physical injury to another person. Ark. Code Ann. § 5-13-301(a)(1)(A) (Repl. 2013). A person acts with purpose with respect to the results of his conduct when it is his or her conscious object to cause the results. Ark. Code Ann. § 5-2-202. "Serious physical injury" means a physical injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Ark. Code Ann. § 5-1-102.
Ark. Code Ann. § 5-53-202 makes threatening a judicial officer a crime:
(a) A person commits the offense of threatening a judicial official or juror if the person directly or indirectly utters or otherwise makes a threat toward another person whom the person knows or should know to be a:
(1) Judicial official;
(2) Juror; or (3) Member of the immediate family of a judicial official or juror.
(b)(1) Threatening a judicial official or juror is a Class B felony if the person threatens:
(A) To cause death or serious physical injury to a judicial official, juror, or any member of a judicial official's or juror's immediate family; or
(B) Substantial damage to property owned or possessed by a judicial official, juror, or any member of a judicial official's or juror's immediate family.
(2) Threatening a judicial official or juror is a Class C felony if the person threatens:
(A) To cause physical injury to a judicial official, juror, or any member of a judicial official's or juror's immediate family; or
(B) Damage to property owned or possessed by a judicial official, juror, or any member of a judicial official's or juror's immediate family.
(c) It is an affirmative defense to any prosecution under this subchapter that at the time the defendant engaged in the conduct, the threat did not relate to the person's status or actions as a:
(1) Judicial official;
(2) Juror; or
(3) Member of the immediate family of a judicial official or juror.
"Immediate family" means the spouse or child of a judicial official or juror. Ark. Code Ann. § 5-53-201(1). The definition of "judicial official" includes any district judge or circuit judge. Ark. Code Ann. § 5-53-201(2). "Threat" means a menace, however communicated, to use physical force against any person or harm substantially any person with respect to his or her property, health, safety, business, calling, career, financial condition, reputation, or a personal relationship. Ark. Code Ann. § 5-53-101(6).
We must first decide whether Radford's motion for a directed verdict is preserved for appellate review. To preserve a sufficiency-of-the-evidence challenge on appeal the defendant must make a clear and specific motion for directed verdict to the circuit court. Williamson v. State , 2009 Ark. 568, at 4-5, 350 S.W.3d 787, 789-90 ; Ark. R. Crim. P. 33.1(c). At the close of the State's case, Radford made this motion:
Your Honor, at this time I would move for a directed verdict on the two counts of threatening a judicial officer, on each count, I don't think the State has proved his intent, intent to terrorize or threaten. The State just proved that he was angry. I don't think he was, there was any intent to terrorize or to threaten a judicial officer or to make a threat of serious physical injury to a judicial officer or to a relative of a judicial officer, immediate family member of a judicial officer.
As far as terroristic threatening, I don't think the State can, the State has proven that he had the purpose to terrorize that person or cause physical injury or serious physical injury, death or serious physical injury to another person.... Even if they did prove rape, I don't think rape would be considered a serious physical injury.
Defense counsel then asked the court "to go back and strike" his argument that rape could not be considered a serious physical injury, which the court did. The court denied the directed-verdict motion:
As to the two counts of threatening a judicial officer, [the prosecuting attorney] is correct that the statute is clear that it be direct threat of serious physical injury. And one of those threats was made toward Judge Keaton and one was made towards his wife. And so, the motion will be denied as to those two counts. And as to terroristic threatening, as to Officer Opelt, the State has also met its burden as to the comments that were directed towards Officer Opelt. So the motion is denied.
When the case closed, Radford renewed his directed-verdict motion "word for word from the previous, except for the part [his counsel] asked to be stricken." The circuit court denied the renewed motion.
Radford raises five arguments here: (1) there was insufficient evidence that he communicated a threat under Ark. Code Ann. § 5-53-101(6) ; (2) there was insufficient evidence that he threatened to cause death, physical injury, or property damage; (3) there was insufficient evidence that Judge Keaton had a wife or that Radford knew or should have known he had a wife; (4) his threatening-a-judicial-officer convictions should be reduced to Class C felonies because there was no proof of a threat of death or serious physical injury; and (5) there was insufficient evidence to support his terroristic-threat conviction because a threat to rape someone does not equate to a threat to cause serious physical injury under Inskeep v. State , 2016 Ark. App. 135, 484 S.W.3d 709.
We hold that Radford's sufficiency challenges to the charges for a judicial officer and for a judicial officer's immediate family member, listed as numbers 1-4 above, are not preserved for review because he failed to make these specific arguments to the circuit court. The sole argument he made in his directed-verdict motion was that the State failed to prove that he had an "intent" to threaten Judge Keaton and his "immediately family member." This is a different argument than the four arguments he makes on appeal. The directed-verdict motion targeting the terroristic-threatening charge is not preserved because the circuit court struck counsel's argument (at counsel's request) that rape could not be considered a serious physical injury.
II.
Radford argues that the charges should have been dismissed because his speedy-trial rights were violated. He concedes that he has raised this issue for the first time on appeal and that there is case law holding that speedy-trial issues cannot be raised for the first time on appeal. But in Radford's view there are some statements in the cases that treat the speedy-trial issue as one of "subject matter jurisdiction," an issue that may be raised for the first time on appeal. He asks us to use the criteria that the United States Supreme Court set forth in Barker v. Wingo , 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) to decide whether his speedy-trial claim is timely and meritorious.
Radford is correct that some case law has termed a Rule 28.1 violation as being "jurisdictional." See, e.g. , Rhodes v. Capeheart , 313 Ark. 16, 17, 852 S.W.2d 118, 119 (1993) ("Arkansas R. Crim. P. 28.1 is jurisdictional inasmuch as it requires a defendant to be brought to trial within twelve months or be absolutely discharged pursuant to Ark. R. Crim. P. 30.1(a)."). But those cases are distinguishable. First, the cases that call a speedy-trial violation "jurisdictional" were presented as extraordinary writs to address violations outside the direct-appeal route. Id. ; Moody v. Ark. Cty. Circuit Court, S. Dist. , 350 Ark. 176, 85 S.W.3d 534 (2002). Other "jurisdictional" speedy-trial cases addressed appeals from lower courts to circuit courts. See State v. Vaughan , 343 Ark. 293, 295, 33 S.W.3d 512, 513 (2000) ("With regard to the trial court's jurisdiction to decide the speedy trial issue, that issue is one that can be raised at any time, even for the first time on appeal.") (citing Ibsen v. Plegge , 341 Ark. 225, 15 S.W.3d 686 (2000) ); see also Ark. Dist. Ct. R. 9 (appeals from district court to circuit court are de novo). While possible outliers exist-depending on how finely one draws the boundary line-our supreme court has held, since Wingo , that a defendant who fails to raise a speedy-trial violation to the circuit court is procedurally barred from raising it here. See, e.g. , Green v. State , 313 Ark. 87, 92, 852 S.W.2d 110, 113 (1993) ("We do not reach the merits of appellant's speedy trial argument because he never raised this argument to the trial court. We have stated time and time again that we do not consider arguments raised for the first time on appeal, and even speedy trial arguments must be so raised.").
Our supreme court decided Green after the United States Supreme Court issued Wingo . In Green , our supreme court did not use Wingo 's four-part balancing test to decide whether Green could raise his speedy-trial issue for the first time on appeal. Our supreme court has also recently stated in dictum that Arkansas's speedy-trial case law does not conflict with Wingo . State v. Owens , 2017 Ark. 362, at 4, 533 S.W.3d 582, 584-85. This is important because the supreme court reaffirmed in Owens that it is the circuit courts' task to make an admittedly "ad hoc" determination whether a defendant's right to a speedy trial was violated. Id. at 5.
Radford never argued to the circuit court that his speedy-trial right had been violated. Given our supreme court's holding in Green , and the strong dicta in Owens , we hold that we may not decide Radford's speedy-trial argument for the first time on appeal.
III.
Now, back to the illegal sentence. As we stated at the outset, we may, and routinely do, highlight illegal sentences on our own initiative. Barber v. State , 2016 Ark. 54, at 10, 482 S.W.3d 314, 322. A sentence is illegal on its face when it exceeds the maximum punishment a governing statute allows given the defendant's convictions. Williams v. State , 2016 Ark. 16, at 3, 479 S.W.3d 544, 545.
Here is the problem in this case. The sentencing range for a Class B felony is five to twenty years' imprisonment. Ark. Code Ann. § 5-4-401(a)(3). The final sentencing order that the circuit court entered shows that Radford's sentence was enhanced by Ark. Code Ann. § 5-4-501, subsection (a) -which increases a sentence when a defendant has more than one, but fewer than four, felonies. See Ark. Code Ann. § 5-4-501(a)(1)-(2). Regarding a Class B felony conviction, subsection (a) increases Radford's potential punishment to a term of imprisonment of at least five, but not more than thirty, years on each of the two Class B felony counts for which he was convicted. Ark. Code Ann. § 5- 4-501(a)(2)(C). Because Radford received forty years on each count of threatening a judicial officer, his sentence is above the statutory range and therefore illegal.
The same defect exists on Radford's first-degree terroristic-threatening conviction, a Class D felony. The maximum time allowed for a Class D felony under section 5-4-401(a) is six years' imprisonment. Ark. Code Ann. § 5-4-401(a)(6). Radford's terrorist-threatening conviction was increased by Ark. Code Ann. § 5-4-501(a), the same subsection under which his term of imprisonment was increased on the two Class B convictions. For Class D felonies, subsection 5-4-501(a) increases the imprisonment term not more than twelve years. Ark. Code Ann. § 5-4-501(a)(2)(E). But Radford was sentenced to fifteen years, three years longer than the statutory maximum permits, a facially illegal sentence.
Some case law from our supreme court permits this court to correct sentencing errors if the illegal sentence has nothing to do with the guilt phase. See, e.g. , Harness v. State , 352 Ark. 335, 339, 101 S.W.3d 235, 238 (2003). We decline to exercise that option in this case and instead remand it to the circuit court for resentencing. The illegal sentence does not relate directly to the guilt phase. Nonetheless, we choose to remand for resentencing because it is not clear how many of Radford's prior convictions the circuit court decided could be used to increase his sentence.
Our supreme court has written the following on sentencing procedure and process:
The correct statutory procedure in a bifurcated trial is, after a finding of guilt, for the trial court to hold a hearing, out of the presence of the jury, to determine the number of prior convictions and to then instruct the jury as to the number to be considered by them in fixing the punishment. Although evidence of prior convictions is made a part of the record for appeal purposes, such material is not introduced into evidence to be considered by the jury.
Graham v. State , 290 Ark. 107, 112, 717 S.W.2d 203, 205 (1986). "The issue of the number of prior convictions is a matter of law, not a matter of fact." McGirt v. State , 289 Ark. 7, 12, 708 S.W.2d 620, 623 (1986).
With some general principles stated, we look to what happened in the circuit court during the sentencing phase. After the jury was polled on its verdict, the circuit judge said,
I'm going to read some instructions to you about the sentencing phase, and then the parties will have the opportunity to submit additional evidence.... It is my duty to instruct you that Tommy Radford has eight felony convictions and is classified as a habitual offender.
The prosecutor presented evidence to the jury of "mostly felonies," although the prosecutor also detailed Radford's misdemeanors, numerous district-court convictions, and some charges the State had abandoned.
State's exhibit no. 2 shows that on 27 January 1998, Radford pleaded guilty to five felonies: (1) second-degree murder, (2) burglary, (3) second-degree battery, (4) theft, and (5) first-degree criminal mischief. Felonies six and seven occurred in 2008, when Radford pleaded guilty to two counts of second-degree sexual assault. The eighth one appeared when Radford pleaded guilty to residential burglary in 2014. Radford neither objected to how the sentencing phase was conducted overall, nor to the specific issue of the number of felonies the jury should have been allowed to consider under the habitual-offender statute.
As we see it, however, one problem is that the court's oral ruling and its written order conflict. The court's oral ruling stated that Radford had eight prior convictions; but its written order reflects a finding of more than one, but fewer than four, felonies under Ark. Code Ann. § 5-4-501(a). A discrepancy between the oral ruling and the subsequent written order is decided in favor of the written order. Vance v. State , 2011 Ark. 243, at 35, 383 S.W.3d 325, 347. Although clerical errors in a sentencing order do not prevent it from being enforced, we cannot tell if the error here is substantive or clerical.
Determining the number and types of felonies that can affect sentencing under Ark. Code Ann. § 5-4-501 (the habitual-offender statute) can become complex for reasons we do not need to delve into today. Suffice it to say that the circuit court is often the best place to clear up sentencing issues.
Affirmed in part; remanded in part for resentencing.
Gruber, C.J., and Glover, J., agree. | [
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BRANDON J. HARRISON, Judge
Dashunda Johnson appeals the decision of the Arkansas Workers' Compensation Commission (the Commission) that found she had failed to prove that she sustained a compensable injury. She essentially argues that the Commission's decision is not supported by substantial evidence. We affirm.
Johnson was an employee of Pizza Hut on 27 February 2016 and claimed that she injured her back while scrubbing the sidewalk outside the restaurant. Pizza Hut controverted the claim, and an administrative law judge (ALJ) convened a hearing on 29 June 2016 to determine Johnson's entitlement to payment of medical expenses and temporary total-disability benefits.
Johnson testified to the following. She began working at Pizza Hut in October 2014, and her job duties included delivering pizzas, waiting tables, and answering the phones. On February 27, her manager, Shalanna Thornton, instructed her to "spray off the sidewalk. And as I was doing that manual labor it caused my, it caused my preexisting condition to be aggravated." She had never had an x-ray or MRI before this alleged incident, but an x-ray performed after the alleged incident showed degenerative disc disease. She did not know how she was injured but said she was "twisting" and "turning." She did not experience any pain at the time but started feeling lower back pain after her lunch break. She reported this pain to Thornton but finished her shift; she also worked a twelve-hour shift the next day, February 28. She began taking Tylenol and Advil after her shift on February 28, and on March 3, she texted Thornton and told her that she could not stand the pain and had to see a doctor. On March 4, Johnson saw her personal physician and was given a steroid shot, which helped with the pain but wore off after a couple of days. She currently attends physical therapy twice a week and takes Neurontin for nerve pain. She has not worked since February 28 but successfully applied for unemployment. She was also awaiting a determination on Social Security benefits. She is forty years old.
On cross-examination, she denied having any problems with her back before 27 February 2016. She also denied ever wearing a back brace at work before that date. She explained that after she cleaned the sidewalks, she picked up boxes of cookie dough and put them in the freezer, went out on two pizza deliveries, and then went home for lunch. When she stood up from her couch after eating lunch, she first felt pain in her back. She went back to work, clocked in, told Thornton that she felt some pain in her back, and resumed her work duties. She texted Thornton on February 28 to tell her that she (Johnson) was still feeling some pain in her back but that she would be reporting to work. She declined an offer to have someone work her shift for her.
Thornton testified that she was Johnson's supervisor at the time of the alleged injury. Thornton said that Johnson had complained of back pain before February 27 and had worn a back brace at work. On the morning of February 27, Thornton arrived at the restaurant sometime before 11:00 a.m. and Johnson was already there. Johnson complained that her back was hurting, and they had a conversation about kidney stones and the need to drink more water. This conversation occurred before Johnson went outside to clean the sidewalks. Johnson was outside for approximately fifteen minutes, and when she came back in, she did not complain of any back pain. Thornton denied that Johnson reported any back pain after returning from her lunch break. Thornton did receive a text message from Johnson on February 28, and in that text message Johnson complained that cleaning the sidewalks was a "man's job" and she would not do it anymore. Johnson also claimed that she could not walk, but she did not ask to be off work and later reported to work as scheduled. Four days later, Johnson told Thornton by text message that she (Johnson)
had to see a doctor. On March 5, Thornton told Johnson that she was required to take a drug test pursuant to company policy; Johnson twice refused a drug test and was ultimately terminated for failing to take the drug test.
B.J. Dawson, a shift leader at Pizza Hut on February 27, testified that Johnson had already finished cleaning the sidewalks when she (Dawson) arrived at work and that Johnson did not mention any back pain due to cleaning the sidewalks. Johnson had mentioned "something about her back" before that day, and she had previously worn a back brace at work.
On 8 August 2016, the ALJ issued a written opinion that reviewed the testimony at the hearing and summarized the medical evidence. According to the ALJ, "[a]n MRI of the claimant's lumbar spine showed no acute injury, only preexisting degenerative changes." The ALJ found that "[b]ased on the MRI scan, the claimant cannot prove she sustained any recent trauma to her back. Therefore she cannot meet the elements of proof for a compensable injury and is not entitled to an award of benefits." The ALJ concluded:
The claimant has failed to prove by a preponderance of the credible evidence that she sustained a compensable injury, caused by a specific incident, arising out of and in the course of her employment which produced physical bodily harm, supported by objective findings, requiring medical treatment or producing disability, pursuant to Ark. Code Ann. § 11-9-102.
In an opinion dated 13 December 2016, the Commission affirmed and adopted the ALJ's opinion as its own. Under Arkansas law, the Commission is permitted to adopt the ALJ's opinion. SSI, Inc. v. Cates , 2009 Ark. App. 763, 350 S.W.3d 421. In so doing, the Commission makes the ALJ's findings and conclusions the findings and conclusions of the Commission. Id. Therefore, for purposes of our review, we consider both the ALJ's opinion and the Commission's majority opinion. Id. Johnson now appeals the Commission's decision.
It is the Commission's duty to make determinations of credibility, to weigh the evidence, and to resolve conflicts in medical testimony and evidence. Martin Charcoal, Inc. v. Britt , 102 Ark. App. 252, 284 S.W.3d 91 (2008). We review the Commission's decision in the light most favorable to its findings and affirm when the decision is supported by substantial evidence. Parker v. Atl. Research Corp. , 87 Ark. App. 145, 189 S.W.3d 449 (2004). Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission: if so, the appellate court must affirm. Parker v. Comcast Cable Corp. , 100 Ark. App. 400, 269 S.W.3d 391 (2007).
Johnson asserts that the Commission's finding that she failed to prove a compensable injury is not supported by substantial evidence. A "compensable injury" is defined as
[a]n accidental injury causing internal or external physical harm to the body or accidental injury to prosthetic appliances, including eyeglasses, contact lenses, or hearing aids, arising out of and in the course of employment and which requires medical services or results in disability or death. An injury is "accidental" only if it is caused by a specific incident and is identifiable by time and place of occurrence[.]
Ark. Code Ann. § 11-9-102(4)(A)(i) (Repl. 2012). Compensable injuries must be established by objective findings, Ark. Code Ann. § 11-9-102(4)(D), and "objective findings" are those findings that cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16)(A)(i).
In its opinion, the Commission found that there was no medical evidence of a compensable injury. On appeal, Johnson argues that (1) objective medical evidence established the injury's existence, and (2) the nonmedical evidence presented to the Commission established a causal connection between the at-work incident and her need for treatment. Regarding the medical evidence, she cites to the MRI that admittedly showed no acute injury but did show "mild multilevel degenerative disc disease," and she claims that the February 27 incident aggravated this "previously asymptomatic degenerative condition." She asserts that "there was no evidence presented that [she] had any physical limitations or restrictions prior to the February 27, 2016 incident." And she cites to the medical report from a doctor's visit on 14 March 2016 that noted her low back pain and stated, "The event which precipitated this pain was twisting. This occurred at work." As to causation, she contends that her own testimony is the "principal evidence" of causation and that this case boils down to "a matter of credibility."
In response, Pizza Hut argues that Johnson failed to present objective medical findings to support an aggravation of any degenerative back condition and that she could only speculate that the alleged injury was even caused by a specific incident. Pizza Hut cites to Johnson's own testimony that she could not pinpoint a specific action that caused her alleged injury and that she did not experience any pain or other symptoms at the time of the alleged incident. As to the medical evidence, Pizza Hut contends that none of the reports from Johnson's doctor noted objective evidence of an injury, and the March 14 notation that her back pain was precipitated by a twisting motion at work is based solely on the history given by Johnson herself. Pizza Hut also notes that at a later visit on April 6, Johnson reported that "[t]he event which precipitated this pain was a fall. This occurred at work." This history is inconsistent with her current allegations of how her injury occurred. Diagnostic testing also revealed an absence of an acute injury; for example, an MRI taken on June 16 showed "degenerative facet joint changes at L5-S1. Otherwise, no other significant or acute finding." Pizza Hut concludes that there was "no testimony or evidence sufficient to create a compensable back injury that never existed" and urges this court to affirm.
We affirm the Commission's decision. Johnson asserts she had no preexisting problems with her back but at the same time argues that this alleged incident aggravated a preexisting condition. But her argument misses the point, which is that the ALJ found no compensable injury, either new or an aggravation of a preexisting condition. There was evidence that Johnson had previous back pain; both Thornton and Dawson testified that Johnson had previously complained of back pain and had worn a back brace at work. But there was simply no evidence of a specific injury occurring on February 27 other than Johnson's own testimony. Johnson is correct that this case ultimately boils down to credibility. As noted above, it is the Commission's duty to make determinations of credibility, to weigh the evidence, and to resolve conflicts in medical testimony and evidence. Martin Charcoal, Inc. , supra. Based on this record, we hold that substantial evidence supports the Commission's decision.
Johnson's brief and reply brief also discuss a myriad of other arguments: her entitlement to permanent total disability, wrongful discharge, violation of her right to privacy, violation of her Fourth Amendment protection against unreasonable searches, and general claims of fraud and negligence against Pizza Hut. However, the Commission's opinion did not address any of these issues, and failing to obtain a ruling on these issues precludes our review on appeal. See Townley v. Ga. Pac. Corp. , 2012 Ark. App. 48, 388 S.W.3d 475.
Affirmed.
Gruber, C.J., and Virden, J., agree. | [
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In custody matters, this court considers the evidence de novo and does not reverse unless the circuit court's findings of fact are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the court is left with a definite and firm conviction that the circuit court made a mistake. Because the question of whether the circuit court's findings are clearly erroneous turns largely on the credibility of the witnesses, we give special deference to the superior position of the trial judge to evaluate the witnesses, their testimony, and the child's best interest. The supreme court has held that there is no other case in which the superior position, ability, and opportunity of the trial court to observe the parties carries a greater weight than one involving the custody of minor children. The best interest of the children is the polestar in every child-custody case; all other considerations are secondary.
Appellant's first two arguments warrant being addressed together as appellant argues that a complete review of the evidence does not support the circuit court's findings in support of its award of custody to appellee. In support of her contention that the circuit court erred in its best-interest determination awarding custody to appellee, she analyzes a list of factors that she asserts support awarding custody of the children to her and then supports her analyses with certain witness testimony. Appellant essentially asks this court to reweight the evidence, which it cannot do. Credibility determinations are left to the trial court.
Appellant's third argument is that the circuit court erred by refusing to consider joint custody. We disagree. Although our legislature has amended Arkansas Code Annotated section 9-13-101 to state that an award of joint custody is favored in Arkansas, joint custody is by no means mandatory. Furthermore, a failure by the circuit court to award joint custody does not mean that the circuit court failed to consider awarding the same. The circuit court expressly stated from the bench that both parties were good parents, but that it would not award joint custody where the parties were not agreeable to a joint-custody arrangement. It went on to state that both parties had declined to entertain joint custody when asked by the circuit court. Accordingly, the circuit court clearly considered awarding joint custody, but appellant's own unwillingness to consider the same was a contributing factor to the circuit court's decision not to award joint custody. A person cannot complain of an alleged erroneous action of the circuit court if she induced such action.
Because appellant's fourth and fifth arguments regarding child support and attorney's fees and costs were put forth by appellant in the event that this court reversed the circuit court's award of custody to appellee-and we decline to do so-we do not address said arguments.
Affirmed.
Gladwin and Whiteaker, JJ., agree.
Burr v. Burr , 2015 Ark. App. 640, at 6, 476 S.W.3d 195, 198 (citing Chaffin v. Chaffin , 2011 Ark. App. 293, 2011 WL 1496000 ).
Id.
Grantham v. Lucas , 2011 Ark. App. 491, at 4, 385 S.W.3d 337, 340 (citing Sharp v. Keeler , 99 Ark.App. 42, 44, 256 S.W.3d 528, 529 (2007) ).
Fox v. Fox , 2015 Ark. App. 367, at 6, 465 S.W.3d 18, 22 (citing Taylor v. Taylor , 345 Ark. 300, 47 S.W.3d 222 (2001) ).
Id.
Newman v. Ark. Dep't of Human Servs. , 2016 Ark. App. 207, at 13, 489 S.W.3d 186, 194 (citing Ford v. Ark. Dep't of Human Servs. , 2014 Ark. App. 226, at 2, 434 S.W.3d 378, 380, 381 ).
Louton v. Dulaney , 2017 Ark. App. 222, at 9, 519 S.W.3d 367, 373 (citing Ark. Code Ann. § 9-13-101 (a)(1)(A)(iii) (Repl. 2015).
Id. at 11, 519 S.W.3d at 374 (citing Clark v. Ark. Dep't of Human Servs. , 2016 Ark. App. 286, 493 S.W.3d 782 ). | [
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KAREN R. BAKER, Associate Justice
Appellant Ivor Gordon appeals from the denial of his pro se petition for postconviction relief filed pursuant to Arkansas Rule of Criminal Procedure 37.1 (2016), which alleged the following grounds for relief: (1) that his trial counsel failed to seek suppression of Gordon's custodial statement; (2) that trial counsel was ineffective for failing to conduct an adequate pretrial investigation; (3) that trial counsel failed to interview witnesses, "allege codefendants," and investigate all statements and notes that were a part of the record or discovery, i.e., counsel failed to investigate Gordon's only possible defense; (4) that trial counsel was ineffective for failing to call or interview Danny Brown, Quentin Jones, or T. Brown; (5) that trial counsel failed to "properly introduce Mr. Jones to the jury as a witness in the case against [ ] Gordon[,]" although Jones was alluded to several times during the trial; (6) that trial counsel was ineffective for making remarks during voir dire, counsel was "fact qualifying" for the jury, and trial counsel showed hostility toward Gordon's "case in chief during [v]oir [d]ire"; (7) and that trial counsel was ineffective for failing to object to improper jury instructions. The trial court denied the petition without an evidentiary hearing, noting that the record demonstrated that the petition failed to allege explicit grounds for postconviction relief. We affirm.
Standard of Review
This court reviews the trial court's decision on Rule 37.1 petitions for clear error. Russell v. State , 2017 Ark. 174, 518 S.W.3d 674. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the totality of the evidence, is left with the definite and firm conviction that a mistake has been committed. Polivka v. State , 2010 Ark. 152, 362 S.W.3d 918.
Procedural History
Gordon was convicted of capital murder and criminal attempt to commit capital murder, for which he was sentenced as a habitual offender to life imprisonment without parole and life imprisonment, respectively, with enhancements for using a firearm and committing the offenses in the presence of a child. Gordon v. State , 2015 Ark. 344, 470 S.W.3d 673. His attorney, Patrick Benca, filed a no-merit brief pursuant to Arkansas Supreme Court Rule 4-3(k) and Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting no nonfrivolous issues for appeal, as well as filing a motion to withdraw as counsel. Gordon filed pro se points for reversal. After the State responded and certified that all adverse rulings were included in appellant's brief and stated that there were no other issues that involved potentially prejudicial error to Gordon, we reviewed the record, briefs, and pro se points, and affirmed the convictions and granted counsel's motion to withdraw. Gordon , 2015 Ark. 344, 470 S.W.3d 673.
The evidence presented at trial, briefly summarized, included that this was a murder-for-hire case. According to Gordon's statement to police, Gordon was hired by Danny Brown to kill Edwina Martin, Brown's ex-girlfriend and mother of his children. Gordon and Quentin Jones, waited for Martin outside her mother's apartment, and when Martin and her boyfriend, Daniel Hill, arrived, Gordon and Jones followed them into the apartment, where Martin's mother and ten-year-old nephew were present. Once inside, Gordon shot Martin, at which point Hill tackled Gordon and took the gun away. Jones then shot Hill in the head. Hill died and Martin survived gunshot wounds to her chest and hip. Gordon was paid $250 before the shooting and was to later receive a 2002 Chevrolet Suburban and an additional $220. Walmart video-surveillance cameras and phone records confirmed that Gordon had been in contact with Brown. Both Martin and her nephew identified Gordon from photographic lineups as the shooter. Trial counsel's defense strategy "was to convince the jury that Gordon was not guilty of capital murder but, instead, of first- or second-degree murder." Gordon , 2015 Ark. 344, at 3, 470 S.W.3d at 675.
Ineffective Assistance of Counsel
Our standard for ineffective-assistance-of-counsel claims is the two-prong analysis set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Rasul v. State , 2015 Ark. 118, 458 S.W.3d 722. The benchmark for judging a claim of ineffective assistance of counsel must be "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland , 466 U.S. at 686, 104 S.Ct. 2052. To prevail on a claim of ineffective assistance of counsel, the petitioner must show that (1) counsel's performance was deficient and (2) the deficient performance prejudiced his defense. Van Winkle v. State , 2016 Ark. 98, 486 S.W.3d 778. Unless a petitioner makes both showings, the allegations do not meet the benchmark on review for granting relief on a claim of ineffective assistance. Houghton v. State , 2015 Ark. 252, 464 S.W.3d 922.
To satisfy the first prong of the Strickland test, the petitioner must show that counsel's performance was deficient by a showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Van Winkle , 2016 Ark. 98, 486 S.W.3d 778. Counsel is presumed effective, and allegations without factual substantiation are insufficient to overcome that presumption. Henington v. State , 2012 Ark. 181, 403 S.W.3d 55. A petitioner has the burden of overcoming the presumption that counsel is effective by identifying specific acts and omissions that, when viewed from counsel's perspective at the time of trial, could not have been the result of reasonable professional judgment. Id.
To satisfy the second prong of the test, a claimant must show that there is a reasonable probability that the fact-finder's decision would have been different absent counsel's errors. Van Winkle , 2016 Ark. 98, 486 S.W.3d 778. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, "the outcome of the trial," refers not only to the finding of guilt or innocence, but also to possible prejudice in the sentencing. Id.
Unless a petitioner makes both required showings under the Strickland analysis, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Therefore, there is no reason for a court to address both components of the inquiry if the petitioner fails to make a sufficient showing on one. Id.
I. Motion to Suppress Custodial Statement
For his first point on appeal, Gordon argues that trial counsel was ineffective for failing to object and file a motion to suppress his "Miranda rights form and custodial statement in violation of [his] [F]ifth and Sixth Amendment Rights to the United States Constitution and Rule 4.5 (Limitation on Questioning), of the Arkansas Rules of Criminal Procedure." He further argues that being "identified by two eye witnesses is a point that is irrelevant and should not have been considered [because he] does not contest being at the scene or even committing the crime." Gordon contends he was entitled to an evidentiary hearing to prove his claims and prejudice.
A petitioner seeking postconviction relief on a claim of ineffective assistance that is based on a failure to make a motion or objection must show that counsel could have made a successful argument in order to demonstrate the prejudice required under the Strickland test. See Greene v. State , 356 Ark. 59, 146 S.W.3d 871 (2004). Failure to make a meritless objection or motion does not constitute ineffective assistance of counsel. Id.
Here, although Gordon contends that the recording of his custodial interview was stopped at his request because he invoked his right to remain silent, the record from the direct appeal indicates otherwise. Prior to the recording being stopped for the first time, Detective John White and Detective DeWanna Phillips confirmed Gordon's basic information, that he had been read his Miranda rights, that he was able to read and write, that he had not been threatened or promised anything, that he could stop the interview at any point, and that he had signed the waiver form. After confirming this information, Detective White asked Gordon, "You saying you don't want to record it now?" Gordon responded by stating, "I don't want it recorded." Detective White turned off the recording, and after a few minutes, the second recording was made. Detective White acknowledged on the second recording that they took a break from recording because Gordon had concerns about the safety of his family and that Gordon wished the interview "would be sealed until ... [p]eople were picked up." These recordings were played at trial.
The trial court found that there was no evidence in the record to suggest that Gordon was not properly advised of his rights or that he did not give a knowing and intelligent waiver of those rights. The trial court further found that Gordon's argument disregarded that two eyewitnesses had identified him, and that he was not entitled to relief.
Here, the record demonstrates that Gordon admitted he committed the offenses, and the eyewitness testimony confirmed that he committed the offenses notwithstanding the admission of his statements. The record further demonstrates that Gordon did not invoke his right to remain silent. Gordon simply requested that his statement not be recorded at that time, which does not rise to the level of an invocation of his right to remain silent. See Sykes v. State , 2009 Ark. 522, 357 S.W.3d 882 (The right to remain silent must be made unequivocally.); see also Standridge v. State , 329 Ark. 473, 951 S.W.2d 299 (1997) (defendant stating that he was not ready to talk but then immediately continued to answer questions of the police officers was not invocation of right to remain silent). Further, failure to make a meritless objection or motion does not constitute ineffective assistance of counsel. Greene , 356 Ark. 59, 146 S.W.3d 871. Therefore, based on the discussion above, we do not find merit in Gordon's argument and affirm the circuit court.
II. Pretrial Investigation
For his second point on appeal, Gordon asserts that his trial counsel was ineffective for failing to conduct an adequate pretrial investigation. A petitioner under Rule 37.1 who alleges ineffective assistance of counsel for failure to perform an adequate investigation must delineate the actual prejudice that arose from the failure to investigate and demonstrate a reasonable probability that the specific material that would have been uncovered with further investigation could have changed the outcome of the trial. Young v. State , 2015 Ark. 65, 2015 WL 854754. Neither conclusory statements nor allegations without factual substantiation are sufficient to overcome the presumption and cannot provide a basis for postconviction relief. Wertz v. State , 2014 Ark. 240, 434 S.W.3d 895. General assertions that counsel did not aggressively prepare for trial are not sufficient to establish a claim of ineffective assistance of counsel. Id.
On appeal, Gordon argues that trial counsel was ineffective for failing to properly and fully investigate the circumstances of his case. Specifically, he argues that trial counsel should have known that "former co-defendant Danny Brown and Quenton Jones was [sic] never involved in this crime, therefore fully putting to the test the Capital Murder charges against Appellant Ivor Gordon." He further argues that counsel did not challenge credibility issues regarding Martin and Brown, did not question their marriage, and failed to "demonstrate that an employer never existed."
Gordon has enlarged on and embellished many of his allegations contained in his Rule 37.1 petition, including his claims regarding trial counsel's failure to conduct a proper pretrial investigation. In his Rule 37.1 petition, Gordon simply argued that trial counsel was ineffective for failing to adequately conduct a pretrial investigation. To the extent Gordon has added factual substantiation to his arguments, we are precluded from addressing them on appeal. Woods v. State , 342 Ark. 89, 27 S.W.3d 367 (2000). An appellant in a Rule 37.1 proceeding is limited to the scope and nature of his or her arguments below, and he or she cannot raise new arguments on appeal. Tester v. State , 342 Ark. 549, 30 S.W.3d 99 (2000).
With regard to Gordon's claim that trial counsel failed to conduct an adequate pretrial investigation, the claim was conclusory and lacked the factual substantiation necessary to overcome the presumption that trial counsel's conduct falls within the wide range of reasonable professional assistance, and this argument could not provide a basis for postconviction relief. Wertz , 2014 Ark. 240, 434 S.W.3d 895. Gordon arguably did raise the issue of the marriage between Martin and Brown when he argued that trial counsel was ineffective for failing to interview or call witnesses in his Rule 37.1 petition, yet the allegation is conclusory at best. Gordon makes no allegation as to how that information would have changed the outcome of his trial or how he was prejudiced by counsel's failure to further conduct any pretrial investigation. Wertz , 2014 Ark. 240, 434 S.W.3d 895. Conclusory allegations that are unsupported by facts do not provide a basis for either an evidentiary hearing or postconviction relief. Henington v. State , 2012 Ark. 181, 403 S.W.3d 55. Therefore, we do not find merit in Gordon's argument and affirm the circuit court.
III. Failure to Interview Witnesses and Codefendants
For his third point on appeal, Gordon contends that his trial counsel was ineffective when he failed to interview witnesses and codefendants. Regarding trial counsel's decision whether to interview or call a witness, such matters are generally trial strategy and outside the purview of Rule 37.1. Wertz , 2014 Ark. 240, 434 S.W.3d 895. Where a petitioner alleges ineffective assistance of counsel for failure to interview or call a witness, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Id. In order to demonstrate prejudice, the petitioner is required to establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. Id. When assessing counsel's decision not to call a particular witness, we must take into account that the decision is largely a matter of professional judgment, and the fact that there was a witness or witnesses who could have offered beneficial testimony is not, in itself, proof of counsel's ineffectiveness. Noel v. State , 342 Ark. 35, 26 S.W.3d 123 (2000).
In his petition, Gordon alleged that his trial counsel was ineffective for failing to interview witnesses and codefendants. Specifically, Gordon contends that had counsel interviewed Jones, his codefendant, counsel would have determined that Jones was innocent and that Jones pleaded guilty only because Gordon threatened Jones, which "disprove[es] the State's case-in-chief of a premeditated murder for hire." Further, in his Rule 37.1 petition, Gordon argued that trial counsel was ineffective for failing to support his theory of defense because he failed to interview witnesses, and look into statements and notes that were a part of the record. Gordon further argued below that trial counsel was ineffective for failing to call or interview Danny Brown, Quentin Jones, and T. Brown, and counsel's failure to "test the [S]tate's case in this fashion left [Gordon] without a defense to Capital Murder."
Here, Gordon failed to provide a summary of the witnesses' testimony and establish that the testimony would have been admissible. See Wertz , 2014 Ark. 240, 434 S.W.3d 895. Gordon has failed to demonstrate that had counsel performed any further investigation and presented the witness or witnesses, the outcome of the trial would have been different. Further, Gordon has gone beyond the scope of his argument made below. An appellant is limited to the scope and nature of the arguments made below, and he or she cannot raise new arguments on appeal or add factual substantiation to the allegations made below.
Woods , 342 Ark. 89, 27 S.W.3d 367. We affirm the circuit court on this point.
IV. Failure to Call Witness to Testify at Trial
For his fourth point on appeal, Gordon contends that his trial counsel was ineffective by not calling witnesses to testify at trial. Gordon contends that trial counsel was ineffective for not introducing Jones, a codefendant, as a possible witness to the jury, which precluded Jones from being called as a witness. The trial court found that Gordon failed to provide any information as to the testimony Jones would offer and that the decision to call a witness was a matter of trial strategy.
At trial, Gordon's trial counsel admitted that Gordon and Jones had shot the victims and did not challenge the sufficiency of the evidence. Gordon , 2015 Ark. 344, 470 S.W.3d 673. The defense strategy was to convince the jury that Gordon was not guilty of capital murder but, instead, of first- or second-degree murder. Id. From a review of the record, the colloquy that ensued regarding Jones as a witness focused on the fact that Jones was not introduced to the jury during voir dire as a potential witness and that the purpose in calling him would be to "corroborate" Gordon's custodial statement. Jones's testimony would not have been used to refute evidence of the offenses but rather to bolster Gordon's statement. Further, even if counsel had been deficient by failing to introduce Jones as a witness to the jury during voir dire, Gordon fails to demonstrate he was prejudiced by the inability to call a witness to corroborate his own custodial statement. Moreover, Gordon fails to provide a summary of Jones's testimony or to show that it would have been otherwise admissible had Jones been permitted to testify. See Wertz , 2014 Ark. 240, 434 S.W.3d 895. Accordingly, Gordon has failed to establish that there was a reasonable probability that, had trial counsel properly introduced Jones as a witness to the jury, the outcome of the trial would have been different. Van Winkle , 2016 Ark. 98, 486 S.W.3d 778.
V. Fact Qualifying During Closing Argument Demonstrating Hostility Toward the Defendant
For his fifth point on appeal, Gordon contends that his trial counsel was ineffective by fact qualifying during closing arguments, demonstrating hostility toward Gordon. Gordon contends that trial counsel "professed guilt to the jury before the jury retired for deliberations[ ]" and that counsel bolstered the State's theory of its case-in-chief. Gordon argued in his petition below that trial counsel was ineffective for "fact qualifying" for the jury and for his "remarks during [v]oir [d]ire." Gordon also argued in his petition that counsel showed hostility toward "Gordon's case-in-chief during [v]oir [d]ire."
While Gordon's arguments on appeal are similar to the arguments made in the petition, Gordon has clearly changed the scope of his arguments, including both his claims for "fact qualifying" and hostility, from making the claims with regard to counsel's ineffective assistance during voir dire to counsel's ineffective assistance during closing argument. As discussed above, an appellant in a Rule 37.1 proceeding is limited to the scope and nature of his arguments below, and he or she cannot raise new arguments on appeal. Tester , 342 Ark. 549, 30 S.W.3d 99. Gordon has failed to demonstrate that he was entitled to an evidentiary hearing or postconviction relief. Henington , 2012 Ark. 181, 403 S.W.3d 55. We do not find merit in Gordon's argument and affirm the circuit court.
VI. Denial of Evidentiary Hearing
Finally, Gordon contends that he is entitled to an evidentiary hearing to prove each of his claims. Arkansas Rule of Criminal Procedure 37.3 requires an evidentiary hearing in a postconviction proceeding unless the petition and the files and records of the case conclusively show that the petitioner is entitled to no relief. Van Winkle , 2016 Ark. 98, 486 S.W.3d 778. If the petition and record conclusively show that the petitioner is not entitled to relief, the circuit court is required to make written findings to that effect, "specifying any parts of the files, or records that are relied upon to sustain the courts findings." Id. (quoting Ark. R. Crim. P. 37.3(a) ). Here, the petition and record conclusively showed that Gordon was entitled to no relief, and the circuit court made the requisite findings. For the above-stated reasons, we affirm the circuit court's denial of Gordon's petition for postconviction relief without an evidentiary hearing.
Affirmed.
The trial court specifically ruled that it was considering only the grounds raised in the original Rule 37.1 petition because an amended Rule 37.1 petition filed by Gordon was filed without leave of court.
Brown subsequently married Martin before the trial and charges were nolle prossed against Brown.
Quentin Vernard Jones, Gordon's codefendant, pleaded guilty to first-degree murder, criminal attempt to commit first-degree murder, a firearm enhancement, and an enhancement because the crime was committed in the presence of a child. Jones v. State , 2016 Ark. 304, 498 S.W.3d 720.
Gordon also argues that he should not have been deprived of his right to refrain from answering further inquiries until he had consulted with an attorney. Although Gordon appears to use the two invocations of rights-the right to remain silent and the right to counsel-interchangeably, he does not make any further reference to invoking his right to counsel. See Robinson v. State , 373 Ark. 305, 283 S.W.3d 558 (2008) (noting there is no distinction between the right to counsel and the right to remain silent with respect to the manner in which it must be effected).
We may take judicial notice of the record from the direct appeal without need to supplement the record. Anderson v. State , 2011 Ark. 488, 385 S.W.3d 783.
Gordon references testimony given by Detective White during his trial and Exhibits 6 and 7, which are CDs containing audio recordings of Gordon's custodial statements. Exhibit 8 is a transcript of Gordon's confession after the recording was resumed, which was initially included in the direct appeal record in case no. CR-13-775. A writ of certiorari was granted to settle the record on October 4, 2014, in case no. CR-13-775, and a supplemental record was filed including both transcripts that were published to the jury that accompanied both recordings of Gordon's statements as well as a copy of a CD that contained both recordings. A writ of certiorari to complete the record was granted on November 6, 2014, in CR-13-775, and a supplemental record was filed on November 18, 2014, including a transcript of the second recording. | [
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Hart, J., concurs.
Josephine Linker Hart, Justice, concurring.
I agree that our precedent requires us to affirm this case, but I write separately to point out the rule of law that this case has solidified if not, in-part, created. I also wish to emphasize that this court's disposition of this case most definitely does not sanction springing prosecution witnesses on the defense on the eve of trial.
As the majority notes, Rule 17.1 of the Arkansas Rules of Criminal Procedure required the State to disclose Ms. Gibson's name and address. Certainly the State did disclose that information in this case, albeit on the eve of trial. However, Rule 17.2(a) requires that "[t]he prosecuting attorney shall perform his obligations under Rule 17.1 as soon as practicable." While I am mindful that the circuit court apparently accepted the State's assurance that its dilatory disclosure was not an effort to "sandbag" the defense, the late disclosure of a pivotal prosecution witness should have compelled the circuit court to grant a continuance. I am troubled that the circuit court elevated docket management over Mr. Duncan's constitutional right to a fair trial. An entire defense strategy can be undermined by such a belatedly disclosed witness. Perhaps the Arkansas Supreme Court Standing Committee on Criminal Practice needs to explore the question whether a continuance should be mandated.
However, based on the arguments made and the record before us, I agree that this case must be affirmed. Our review of a circuit court's denial of a continuance motion, like every allegation of trial error, hinges on whether the error is "prejudicial." E.g. , Hickman v. State , 372 Ark. 438, 443, 277 S.W.3d 217, 222 (2008). This requirement of prejudice leads to the unusual rule of law implicated by this case.
For reversal, Mr. Duncan relies on McEwing v. State , 366 Ark. 456, 237 S.W.3d 43 (2006). In McEwing , the defense informed the State of a new witness the day before trial, and the State objected to allowing the witness to testify. Id. The defense offered to permit the State to interview the witness prior to that witness testifying. Id. The circuit court found that accommodation reasonable, but conditioned allowing the witness to testify on the State confirming that it had adequate time to prepare to cross-examine the witness. Id. The witness was ultimately excluded because the State informed the court that, given the demands of its trial preparation, it had not been able to interview the witness. Id. The following colloquy in McEwing is illustrative:
[ THE COURT ]: Okay. Well, what I'll do is this. I'll let the State talk to both the witnesses, Janelle-what is her last name?
[ DEFENSE COUNSEL ]: Young.
[ THE COURT ]: Young and Annette McGee. I'm not going to-if the State won't allow you all-if you all can't prepare a response to the-to their testimony, I'm going to exclude Janelle Young. If McGee, Annette McGee is in the file, then I'll allow her to testify, but I'll exclude Janelle Young if the State doesn't-if they can't, because they may want to do her record or find out on that. It's just unfair. You can't do that. I won't allow it unless the State has had a chance to talk to the witness and if it feels that it can adequately do a cross examination then I'll allow it. But otherwise I'm not going to allow that witness to testify. All right.
....
[ THE COURT ]: Did you guys have a chance to talk to the other witness?
[ DEPUTY PROSECUTING ATTORNEY ]: Your Honor, we've had so many problems getting our own witnesses here.
[ THE COURT ]: Okay. All right. I'll allow the one witness, the mother.
[ DEFENSE COUNSEL :] Okay. For the record, I would like to state that I think, you know, they could've called and checked or had their office in the five hours, four hours that we've been here and call ACIC at least and check and see if she had any record or anything like that.
[ THE COURT :] All right.
366 Ark. at 459-460, 237 S.W.3d at 45-46.
In my view, McEwing is directly on point, and Mr. Duncan has misinterpreted the holding, to his detriment. The broad holding in McEwing is that a belatedly disclosed witness should be excluded if it prejudices the other side, but determination of that prejudice is based on the adverse party's representation to the circuit court that it was unable to adequately prepare for the belatedly disclosed witness. It is disquieting to note this rule of law, because it has the potential to bring about outcomes that do not necessarily comport with justice. Furthermore, it is precedent for requiring a circuit court to cede its authority to order a continuance to an adverse party that has strong incentive to impair the opposing party's case.
In McEwing , the deputy prosecutor asserted that he did not have time to interview the witness and that he could not adequately prepare for the witness, so the circuit court disqualified the witness. In the case before us, Mr. Duncan's defense counsel took the time to interview Ms. Gibson and expressed confidence that he could adequately cross-examine her. My vote to affirm this case rests on the fact that the record demonstrates that Mr. Duncan's confidence in his ability to impeach Ms. Gibson on cross-examination was well-founded.
On cross-examination, Mr. Duncan's defense counsel elicited testimony from Ms. Gibson that she would probably test positive for marijuana on the day she testified and that she had smoked it on and off for about 15 years. Further, she admitted that she had dated the victim's father for about 15 years prior to the victim's death, that she regarded the victim like a son, that it had hurt her to see the victim shot, and that she wanted "justice" for him. Ms. Gibson also had to admit that she had been arrested before because a man "put his hands on" her and she "cut him with a knife," but she was not charged with a crime. She also revealed that she had pleaded guilty to felony abuse of an adult in Lonoke County in 2008 when she worked in a nursing home, that she was placed on probation for three years, and that she had the crime expunged. Accordingly, there is no proof of prejudice in the record before us.
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LARRY D. VAUGHT, Judge
Appellant Jose Garcia ("Jose") appeals the divorce decree entered by the Pulaski County Circuit Court and its deemed-denial of his subsequent posttrial motions. We reverse and remand.
Jose and appellee, Maria Garcia, were married for thirteen years. The couple have two minor children together, X.G. (born in 2003) and B.G. (born in 2005). In October 2016, Maria locked Jose out of the marital home and subsequently filed for absolute divorce. Jose was served, and he entered a timely answer. Jose also filed a counterclaim for divorce and a motion for contempt against Maria. In his motion, he alleged that on September 26, 2016, Maria fraudulently induced Jose (who does not speak or read English and relied on Maria to translate) to sign an agreement for monetary support based on Maria's false representations that the document dealt only with Jose's contributions toward household expenses while he resided at the marital home. Jose also claimed that Maria had sold, destroyed, or withheld items of his personal property and that she failed to disclose her Arkansas Teacher Retirement pension plan.
At the trial on June 8, 2017, Maria waived corroboration of grounds for divorce, and Jose waived all rights to visitation with his children. When the agreement for monetary support came up, the court clearly stated that it was not going to enforce an agreement that was entered into before either party had an attorney and was written in a language that one party did not understand. Maria repudiated the agreement in open court. Jose's attorney asked that the repudiation be put in the language of the divorce decree so that it may be filed with the clerk's office, to which the court agreed.
Regarding Maria's pension, Jose testified that he should receive the "marital fraction," "the portion of Ms. Garcia's pension that corresponds to the time we were married." Maria testified that, although she is not a contributor to the pension plan, she is vested and will receive "something" from the district after she retires. She testified that "I know I'm vested" and "I was vested after three ... years of working at the school district."
The court issued its decree on June 21, 2017, in which it granted Jose an absolute divorce and granted sole custody of the children to Maria. It ordered Jose to pay $346 biweekly in child support and $100 per pay period in spousal support, both effectuated through wage assignment. The court awarded Maria the couple's home and mortgage and awarded Jose title to the Nissan and Honda vehicles. The court found that neither party could afford the couple's 2016 Chevrolet Traverse and ordered that it be immediately sold or returned to the dealership. The parties were ordered to evenly split the debt remaining on the truck after the sale, with Maria getting credit for the monthly payments she had made on the vehicle. The court awarded Jose "the marital fraction, if any there be, of Ms. Garcia's pension with the Little Rock School District."
The court denied Jose's motion for contempt of court. The order did not address Maria's alleged disposal, destruction, or withholding of certain personal property and did not allocate or award that property to either party. As to the monetary agreement, the court found that the issue was moot as Maria had repudiated the agreement in open court. The decree stated that the monetary agreement is not to be enforced, and the court directed Jose to file the decree "wherever need be to protect against any future claim Ms. Garcia might attempt to make to enforce the agreement." The court also found that Maria's original failure to disclose her pension plan did not constitute contempt because she had mistakenly believed that she was not a plan participant.
On June 23, 2017, Jose filed a posttrial motion pursuant to Arkansas Rule of Civil Procedure 52 followed by an amended Rule 52 motion on June 26, 2017, both seeking additional findings and reconsideration of alimony. Jose then filed a motion, pursuant to Rules 60(a) and 52(b) of the Arkansas Rules of Civil Procedure and Arkansas Code Annotated section 9-12-320(a)(1), asking the court to set a specified percentage of Maria's pension to which Jose is entitled. Jose stated that the motion was made pursuant to a request from the Arkansas Teacher Retirement System. Jose filed an amended motion, specifically seeking fifty percent of the pension. Maria never filed responses to Jose's posttrial motions, and the court never ruled on them. These motions were deemed denied pursuant to Rule 4(b)(1) of the Arkansas Rules of Appellate Procedure-Civil. Jose filed a notice of appeal on August 19, 2017, and an amended notice on August 26, 2017, after he discovered that Maria had remarried.
Jose's first point on appeal is that the court erred in finding that he was entitled to "the marital fraction, if any there be" of Maria's pension and erred in denying his posttrial motions to clarify the pension award. He argues that the undisputed evidence was that Maria was vested in her Little Rock School District pension plan and that she and Jose had been married in 2003, before she began working for the district. He notes that the Arkansas Teacher Retirement System (ATRS) directed Jose to seek clarification from the circuit court on the pension issue because it could not implement the court's order as written. Based on our supreme court's precedent in Addis v. Addis , 288 Ark. 205, 207, 703 S.W.2d 852, 854 (1986), Jose argues that he is entitled to an award of fifty percent of the pension accrued during the marriage (or stated differently, fifty percent of the pension as of the date of the divorce decree).
Jose cites numerous cases for the position that he is entitled to a share of Maria's pension, but there does not appear to be any dispute as to that point. The real issue is whether the circuit court erred in failing to specifically find that (1) Maria had a vested pension that was part of the property to be divided in the divorce decree, and (2) Jose was entitled to fifty percent of the pension. As to the first issue, we agree with Jose that it was reversible error for the court to fail to make an unequivocal finding that Maria had a vested interest in her pension plan based on the undisputed evidence presented at trial. To the extent that this is a finding at all, it is clearly erroneous.
As for the second issue, the court's failure to specifically designate the amount or percentage of the pension awarded to Jose, we reverse based on Arkansas Code Annotated section 9-12-315, which states in pertinent part:
(a) At the time a divorce decree is entered:
(1)(A) All marital property shall be distributed one-half (½) to each party unless the court finds such a division to be inequitable....
...
(B) When property is divided pursuant to the foregoing considerations the court must state its basis and reasons for not dividing the marital property equally between the parties, and the basis and reasons should be recited in the order entered in the matter;
(2) All other property shall be returned to the party who owned it prior to the marriage unless the court shall make some other division that the court deems equitable taking into consideration those factors enumerated in subdivision (a)(1) of this section, in which event the court must state in writing its basis and reasons for not returning the property to the party who owned it at the time of the marriage;
(3)(A) Every such final order or judgment shall designate the specific real and personal property to which each party is entitled.
...
(b) For the purpose of this section, "marital property" means all property acquired by either spouse subsequent to the marriage except....
Ark. Code Ann. § 9-12-315 (Repl. 2015). From the statutory language above, it appears clear that the pension was marital property and that the statute requires the court to (1) divide all marital property evenly or state its reasons for unequal distribution, and (2) "designate the specific real and personal property to which each party is entitled." It failed to do either. This case is akin to Thurmon v. Thurmon , 2016 Ark. App. 497, at 5, 504 S.W.3d 675, 678, in which we held that
[t]here is also a problem with the division of the 401(k) savings account. The divorce decree states: "The 401(k) savings plans through the employment of the parties shall be divided equally." The record, however, does not reveal whether this particular account was fully or partially vested, or what amount of money was contributed during the marriage versus prior to the marriage. The circuit court did not specify whether all, or part, of the 401(k)'s assets were marital property. So we cannot tell from the decree whether the court equally divided marital property or distributed nonmarital property to a non-owning spouse for some reason. Given this uncertainty, we remand the case so the circuit court may reconsider the division of the 401(k) account and provide findings to support whatever decision it makes.
Therefore, we reverse and remand for specific distribution of the pension.
Jose's second point on appeal is the court's failure to designate the agreement of monetary support by its Pulaski County Circuit Court file number. Jose has cited no authority for the position that the court's designation of the agreement by its name rather than its circuit court instrument number was reversible error. This court may refuse to consider an argument when the appellant fails to cite any legal authority, and the failure to cite authority or make a convincing argument is sufficient reason for affirmance. Jewell v. Fletcher , 2010 Ark. 195, at 24, 377 S.W.3d 176, 191 ; Moody v. Moody , 2017 Ark. App. 582, at 12, 533 S.W.3d 152, 160.
Jose's third and final point on appeal alleges that the court failed to evenly divide the parties' marital property because it failed to distribute numerous items of personal property Jose specifically requested, including a floor buffer, an Apple computer (or the proceeds therefrom), title and license plates for the vehicles, his California driver's license, his Mexican military documents, a large speaker, a photograph of his father, and pictures of the children without their faces cut out. These items were specifically requested in Jose's pretrial motion for contempt, and he testified about them at trial, but the court's written order fails to designate them as marital or nonmarital property or to distribute them to either party. Jose argues that it is impossible for us to determine whether the court equally distributed the couple's marital property when these items, some of which were of significant value, were not addressed in the decree. We agree. For the reasons stated above as to Jose's first point on appeal, we reverse and remand for a specific designation and allocation of assets pursuant to Arkansas Code Annotated section 9-12-315.
Reversed and remanded.
Virden and Gladwin, JJ., agree. | [
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KENNETH S. HIXSON, Judge
Appellant Alecia Harjo appeals from the termination of her parental rights to her son Z.H.1, age 8, and her daughter Z.H.2, age 6. Because Z.H.1 and Z.H.2 are Indian children, the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 et seq., applies to the case. On appeal, Alecia argues that the termination order should be reversed because the evidence was insufficient to establish statutory grounds for termination. We affirm.
We review termination-of-parental-rights cases de novo. Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851. At least one statutory ground must exist, in addition to a finding that it is in the children's best interest to terminate parental rights. Ark. Code Ann. § 9-27-341 (Supp. 2017); Kohlman v. Ark. Dep't of Human Servs. , 2018 Ark. App. 164, 544 S.W.3d 595. For termination proceedings subject to the ICWA, as in this case, the burden of proof is beyond a reasonable doubt. Ark. Code Ann. § 9-27-325(h)(3)(B)(2) (Supp. 2017). We will not reverse the trial court's ruling unless its findings are clearly erroneous. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. A finding is clearly erroneous when, although there is evidence to support it, we are left with a definite and firm conviction that a mistake has been made. Id.
This case was initiated by appellee Arkansas Department of Human Services (DHS) when it filed a petition for emergency custody of the children in Washington County Circuit Court on May 2, 2016. An attached affidavit of a family-service worker stated that the children were removed from the parents' home in Washington County two days earlier pursuant to an emergency hold. The affidavit alleged that both parents, Alecia and Joshua, had been arrested, thereby leaving no caretaker for the children. Alecia was arrested for endangering the welfare of a minor and public intoxication. Joshua was arrested for endangering the welfare of a minor and domestic battery committed against Alecia. The affidavit further stated that there had been prior DHS involvement with the family for issues related to environmental neglect, educational neglect, and inadequate shelter.
On May 2, 2016, the Washington County Circuit Court entered an ex parte order for emergency custody of the children. A probable-cause order was entered on May 3, 2016.
The Washington County Circuit Court entered an adjudication order on June 22, 2016, finding the children to be dependent-neglected. The trial court placed custody of the children with their maternal grandfather, Max Trotter, who lives in Izard County. The trial court authorized Alecia to live in the home with Mr. Trotter and the children, but she was ordered not to be alone with the children. Alecia was ordered to cooperate with DHS, participate in counseling, submit to a drug-and-alcohol assessment and follow the recommendations, refrain from using illegal drugs or alcohol, submit to drug screens, and maintain stable housing and employment. The goal of the case was reunification. Because the juveniles were relocated to Izard County, an order was entered transferring the case to Izard County Circuit Court.
The Izard County Circuit Court conducted a review hearing on September 20, 2016, and the court subsequently entered a review order finding that the parents had complied with the case plan. On October 14, 2016, DHS filed in Izard County Circuit Court a motion for ex parte emergency custody of the children. Attached to the petition was an affidavit of a family-service worker stating:
There was an emergency and services could not be provided to prevent removal. FSW Hutchins received several phone calls from the grandfather, Max Trotter. Mr. Trotter stated that he can no longer take care of the children, due to the mother not being in compliance with the case and that she was using illegal substances. Mr. Trotter stated that he did not believe that the children would be safe in his home due to the children's father and his daughter's behaviors. Mr. Trotter stated that he did not want the children to be harmed and that his daughter was not doing what she needed to do. Mrs. Harjo contacted FSW Hutchins and was very erratic on the phone stating that her father was kicking her out of the home and she was going back to her husband in Northwest AR.
On October 24, 2016, the Izard County Circuit Court entered an order of emergency change of custody, placing the children in the custody of DHS. The children returned to Washington County, and an order was entered transferring the case back to Washington County Circuit Court.
On December 22, 2016, in Washington County Circuit Court, an agreed order was entered whereby the parties agreed to a trial home placement of the children with the parents. In that order, the parties agreed that Alecia and Joshua were in compliance with the case plan, that the parents' home was clean and appropriate, and that the parents had passed random drug screens. In addition, Alecia's criminal charges had been dismissed. Based on these circumstances, the parties agreed that a trial home placement was in the children's best interest.
The first of two permanency-planning hearings was held on April 13, 2017. In a permanency-planning order entered on April 13, 2017, the trial court found that the trial home placement was unsuccessful and that the children were removed from the trial home placement on February 5, 2017. The trial court further found that both parents had not complied with most of the case plan and had made minimal progress toward alleviating the causes of the children's removal from the home. With regard to Alecia, the trial court specifically found:
She has not maintained sobriety, has not maintained contact with DHS, has not passed all drug screens, and has not attended all visits offered to her. Mother has missed 9 out of 19 drug screens requested and failed 4 of the 10 she attended. Mother tested positive for methamphetamine as recently as March 20, 2017-and she did not contest the result.
The second permanency-planning hearing was held on June 21, 2017. In a permanency-planning order entered on June 23, 2017, the trial court found that Alecia had tested positive for methamphetamine, amphetamines, and THC on April 24, 2017, and again on June 15, 2017. The trial court also found that, despite three referrals, Alecia had not completed individual counseling. The goal of the case was changed to termination of parental rights and adoption.
On July 24, 2017, DHS filed a petition to terminate both parents' parental rights. The termination hearing was held on September 21, 2017.
On October 16, 2017, the trial court entered an order terminating the parental rights of both Alecia and Joshua. The trial court found by evidence beyond a reasonable doubt that termination of parental rights was in the children's best interest. In making its best-interest determination, the trial court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of their parents as required by Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). With respect to both parents, the trial court found evidence beyond a reasonable doubt of the following three statutory grounds under subsection (b)(3)(B):
(i)(a) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued to be out of the custody of the parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that caused removal, those conditions have not been remedied by the parent.
....
(ii)(a) The juvenile has lived outside the home of the parent for a period of twelve (12) months, and the parent has willfully failed to provide significant material support in accordance with the parent's means or to maintain meaningful contact with the juvenile.
....
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent.
The trial court also found beyond a reasonable doubt, under the provisions of the ICWA, that DHS provided remedial services and rehabilitative programs designed to prevent the breakup of the Indian family but that those efforts proved unsuccessful. See 25 U.S.C. § 1912(d). Finally, the trial court found evidence beyond a reasonable doubt, including qualified expert testimony, that continued custody of the children by the parents would likely result in serious emotional or physical damage to the children, as also required by the ICWA. See 25 U.S.C. § 1912(f).
Cortney Willis, the DHS caseworker assigned to this case, testified at the termination hearing. Ms. Willis testified that since being removed from the trial home placement in February 2017, the children have lived with their foster parents in an Indian tribal home. According to Ms. Willis, the children are doing very well in foster care and are "absolutely adoptable." Ms. Willis indicated that Alecia visited the children only sporadically and that the visits caused the children to regress. Ms. Willis testified that on April 24, 2017, Alecia tested positive with "astronomical numbers" for methamphetamine, amphetamines, and THC. Alecia completed a residential substance-abuse treatment program between June 4 and August 3, 2017. However, according to Ms. Willis, Alecia continued to test positive after she had completed the program. Alecia tested positive for alcohol on August 15, 2017, and tested positive for methamphetamine on September 12, 2017. Alecia also evaded multiple drug screens after her release from drug treatment. Ms. Willis did not believe that Alecia had remedied the conditions that caused removal of the children. She further stated that due to Alecia's continued drug use, Alecia is incapable of caring for the children and keeping them safe. Ms. Willis also testified that Alecia was not in compliance with the case plan and had failed to maintain contact with DHS. Ms. Willis did not believe that the children would have a safe, stable, and permanent home if returned to Alecia's custody, and she recommended termination of parental rights.
Nicole Allison, a child-welfare specialist with the Cherokee Nation Indian Child Welfare Program, testified as an Indian-child-welfare expert. Ms. Allison testified that the children were placed in an ICWA-compliant foster home. After reviewing the files and court orders and listening to the testimony at the termination hearing, Ms. Allison believed that there was evidence beyond a reasonable doubt that continued custody by either parent would likely result in serious emotional or physical damage to the children. Ms. Willis also believed, after reviewing the services DHS offered and provided to the family, that active efforts were made by DHS to prevent the breakup of the Indian family.
The children's foster mother, identified as Hollie, testified that the children were doing very well in her home and were bonded to her and her husband. Hollie indicated that the children exhibited behavioral issues only after visits with their parents. Hollie testified that her home would be a potential adoptive placement for the children if parental rights were terminated.
Alecia testified that she is no longer in a relationship with Joshua and did not know where he lives. Alecia stated that she was staying with her mother until she could get an apartment. Alecia was employed by a temporary agency, but stated that she was working toward having her expired nursing license reinstated. Alecia acknowledged that she had missed some of the scheduled visits with her children. She also admitted to being a methamphetamine user, and stated that the children were removed from the trial home placement after both she and Joshua had tested positive for methamphetamine. However, she claimed that she had not used methamphetamine since completing the substance-abuse treatment program. Alecia stated that she did not have a good answer for why she waited 432 days into the case to go to rehabilitation. Alecia stated that, if the children could not be returned home and parental rights were terminated, she would like the children to be placed with Joshua's aunt so they could stay in the family.
In this appeal, Alecia argues that there was insufficient evidence to support any of the three statutory grounds found by the trial court under the Arkansas termination statute. Alecia contends that the failure-to-remedy ground was not proved because the sole cause of the children's removal was her arrest that resulted in the children being left without a caregiver, and by the time of the termination hearing the charges against her had been dismissed. With respect to the lack-of-meaningful-contact-or-significant-support ground, the trial court specifically found only that Alecia had failed to maintain meaningful contact with the children; it made no finding that she had willfully failed to provide significant material support. Alecia argues that there was insufficient evidence to support this ground because, while she did miss some visits with the children, she attended numerous other visits and actually lived with the children when her father had custody and during the trial home placement. Finally, Alecia contends that there was insufficient evidence to support the subsequent-factors ground. Alecia asserts that she lives with her mother and there was no evidence that her mother's home is inappropriate. She further asserts that she has employment and is working toward reinstating her nursing license. Alecia also claims that DHS failed to offer appropriate family services as required by this ground because DHS did not offer drug treatment to address her drug issues until after the second permanency-planning hearing held in June 2017, which was just a few months before the termination hearing.
Only one ground is necessary to terminate parental rights. Wafford v. Ark. Dep't of Human Servs. , 2016 Ark. App. 299, 495 S.W.3d 96. We hold that the trial court did not clearly err in finding that DHS proved the subsequent-factors grounds under Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) , which provides that parental rights may be terminated when other factors arose subsequent to the filing of the original petition that demonstrate that placement of the juveniles in the custody of the parent is contrary to the juveniles health, safety, or welfare, and that despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent factors or rehabilitate the parent's circumstances.
The record shows that during the course of this seventeen-month case, DHS provided Alecia extensive services including individual counseling, a drug-and-alcohol assessment, random drug screens, and residential drug treatment. The Indian-child-welfare expert testified that these services constituted active efforts by DHS to prevent the breakup of the Indian family. Despite these services, Alecia regressed. Alecia missed counseling sessions, missed visits with her children, and failed to maintain contact with DHS. Alecia also refused or failed to show up for numerous drug screens. When Alecia did submit to drug screens, many of them were positive. The record reflects that Alecia was positive for benzodiazepines on December 5 and 21, 2016; positive for methamphetamine on January 27, 2017 (when the children were in trial home placement with Alecia); positive for methamphetamine, amphetamines, and THC on March 20, 2017; positive for THC on April 21, 2017; positive for methamphetamine, amphetamines, and THC on April 24, 2017; positive for methamphetamine, amphetamines, and THC on April 28, 2017; positive for methamphetamine, amphetamines, and THC on June 15, 2017; positive for THC on June 23 and 30, 2017; positive for alcohol on August 15, 2017; and positive for methamphetamine on September 12, 2017.
Alecia's positive alcohol test on August 15, 2017, and positive methamphetamine test on September 12, 2017, came after she was released from residential-drug treatment in early August of 2017. In Alecia's brief, she contends that the September 12, 2017 test would have detected methamphetamine ingested prior to her entering the treatment program, given the testimony that this was a hair-follicle test capable of detecting methamphetamine for about ninety days after use. However, even assuming that the September 12, 2017 test may have detected her methamphetamine use prior to the substance-abuse treatment, rather than after, there was further evidence that, after being released from treatment, Alecia failed to show up for five drug screens and refused another. On the only two screens Alecia submitted to after her release from drug treatment, she tested positive for alcohol and methamphetamine.
We have held that a parent's continued use of illegal drugs and failure to submit to drug screens is evidence of potential harm to the children. See Skaggs v. Ark. Dep't of Human Servs. , 2014 Ark. App. 229. In Allen v. Arkansas Department of Human Services. , 2011 Ark. App. 288, 384 S.W.3d 7, we held that a parent's continued use of illegal drugs shows an indifference to remedying the problems plaguing the family. Moreover, failure to follow the case plan, participate in counseling, and submit to random drug screens shows indifference or an inability to comply. Allen, supra. Based on the record before us, we conclude that the trial court's decision to terminate Alecia's parental rights based on the subsequent-factors ground was not clearly erroneous.
Affirmed.
Whiteaker and Murphy, JJ., agree.
The children's father, Joshua Harjo, also had his parental rights terminated. However, Joshua was not present at the termination hearing and did not appeal the termination decision. As such, he is not a party to this appeal.
On appeal, Alecia does not challenge these findings under the ICWA. | [
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PHILLIP T. WHITEAKER, Judge
Appellant TMG Cattle Co., Inc. ("TMG"), appeals the order of the Phillips County Circuit Court granting the motion for summary judgment filed by appellee Parker Commercial Spraying, LLC ("Parker"). On appeal, TMG contends that the circuit court erred in finding that there were no genuine issues of material fact. We agree, and we reverse and remand.
I. Background
TMG is a cattle business. Parker is a business providing spraying services to farmers. On February 17, 2016, Parker sprayed urea fertilizer in a wheat field adjacent to a field where TMG's cattle were grazing. On February 20 or 21, TMG discovered eighteen dead cows on its property, all located in and around a pond adjacent to the wheat field where Parker had applied the urea fertilizer. TMG filed a complaint against Parker, alleging that Parker's spraying of toxic chemicals in the field near where the cows were grazing was the proximate cause of the deaths of the cattle.
Parker answered and moved for summary judgment, arguing that TMG was unable to prove that the cows' deaths were caused by the fertilizer application. In seeking summary judgment, Parker asserted that the deposition testimony of TMG's veterinarian, Dr. Holt Pittman, did not definitively link the cows' deaths to the consumption of urea fertilizer. After a hearing, the circuit court entered an order granting Parker's summary-judgment motion, finding that there was "no genuine issue as to any material fact and that based on the undisputed material facts, [Parker] is entitled to judgment as a matter of law." TMG filed a timely notice of appeal.
II. Standard of Review
A circuit court may grant summary judgment only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Harrisburg Sch. Dist. No. 6 v. Neal , 2011 Ark. 233, 381 S.W.3d 811. The party seeking summary judgment has the burden of establishing a prima facie entitlement to summary judgment. Once this has been established, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, we determine whether summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Campbell v. Asbury Auto., Inc. , 2011 Ark. 157, 381 S.W.3d 21. We view the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and documents filed by the parties. Cent. Okla. Pipeline, Inc. v. Hawk Field Servs., LLC , 2012 Ark. 157, 400 S.W.3d 701. The purpose of summary judgment is not to try the issues, but to determine whether there are any issues to be tried. Davis v. Schneider Nat'l, Inc. , 2013 Ark. App. 737, 431 S.W.3d 321.
III. Analysis
In its brief on appeal, TMG breaks its argument down into several subpoints, asserting that the circuit court erred (1) in ruling there were no issues of material fact, (2) in not resolving remaining doubts against the moving party, and (3) by improperly imposing the burden of proof on the nonmoving party; moreover, TMG contends that even if it was proper to shift the burden to it, it still demonstrated that material questions of fact remained. The fundamental crux of its argument, however, is that the circuit court erred in finding that there were no genuine issues of material fact. We agree.
TMG's complaint raised claims of negligence against Parker. To prevail on a claim of negligence, TMG must prove that Parker owed a duty to it, that Parker breached that duty, and that the breach was the proximate cause of TMG's damages. Lloyd v. Pier W. Prop. Owners Ass'n , 2015 Ark. App. 487, 470 S.W.3d 293. Parker's summary-judgment motion specifically challenged TMG's evidence regarding proximate cause and did not question the issues of duty and breach. We therefore focus solely on the question of proximate cause.
Proximate cause is defined as "that which in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred." Pollard v. Union Pac. R. Co. , 75 Ark. App. 75, 79, 54 S.W.3d 559, 562 (2001). Proximate cause in a negligence action may be shown from circumstantial evidence, and such evidence is sufficient to show proximate cause if the facts proved are of such a nature and are so connected and related to each other that the conclusion therefrom may be fairly inferred. Wallace v. Broyles , 331 Ark. 58, 67, 961 S.W.2d 712, 715 (1998) (citing White River Rural Water Dist. v. Moon , 310 Ark. 624, 839 S.W.2d 211 (1992) ). Proximate causation is usually an issue for the jury to decide, and when there is evidence to establish a causal connection between the negligence of the defendant and the damage, it is proper for the case to go to the jury. City of Caddo Valley v. George , 340 Ark. 203, 9 S.W.3d 481 (2000).
On the issue of proximate causation, Parker submitted the depositions of Dr. Holt Pittman, TMG's veterinarian, and Hunter Jackson, the driver of the tractor that sprayed the fertilizer. Dr. Pittman examined the dead cows on February 25, which was four or five days after the cows' bodies were discovered. He observed eighteen dead female cows, all averaging a weight of approximately 600 pounds. The dead cows were all congregated around a "bar hole," or pond, located on TMG's property adjacent to the wheat field. The fact that all the dead cows were congregated in and around a watering hole indicated to Dr. Pittman that all of the cows died from the same cause. Dr. Pittman suspected the death of the cows could be associated with urea poisoning based on the location of their dead bodies: the cows were located around the pond, which was adjacent to the wheat field. Dr. Pittman placed significance on this because of the recent application of urea to the wheat field, as evidenced by tractor tracks in the wheat field adjacent to the cow pasture. He further explained that if the cows ate urea, it would have made them extremely thirsty, so the cows' first instinct would have been to get a drink of water. Dr. Pittman opined that a 600-pound cow would have to consume approximately 200-300 grams of urea to reach a toxic dose.
To confirm his suspicions, Dr. Pittman obtained tissue samples from a cow's rumen (a part of the cow's stomach) and eye fluids and tested them for ammonia toxicity or ammonia toxicosis. Dr. Pittman admitted that the tests showed a normal level of ammonia in the cow's tissues at the time of testing. He explained, however, that when a cow dies from, or is exposed to, a toxic amount of ammonia, the increased levels of ammonia will only be present for about twenty-four hours. After that time, the ammonia would reach equilibrium and be at a steady state. For that reason, testing for ammonia toxicity is valuable only within twelve to twenty-four hours after death, and Dr. Pittman was therefore not surprised that the results showed a normal level of ammonia.
Dr. Pittman acknowledged that he did not see any visible fertilizer pellets in the cow's rumen or in the wheat field. He also did not take any soil samples, plant-tissue samples, water samples, or samples of any other food that the cattle had been fed. He also agreed that it would have been impossible to observe any objective markers of ammonia toxicosis during his necropsy, as any such clues had given way to decomposition. He further conceded that there could have been other sources of the urea in the cattle, such as a dietary supplement or from runoff into the pond from fertilizer applications elsewhere, but he added that to his knowledge, TMG did not use urea as a supplement. Finally, Dr. Pittman acknowledged that cows could build up a tolerance to urea if they were exposed to it over time, and he did not know whether these particular cows had done so, nor did he know what the urea content of the cows' diet was.
Dr. Pittman's ultimate conclusion, however, was that he was 95 percent certain that the cows died from ammonia toxicosis, despite the lack of laboratory evidence. He opined as follows:
Based upon the lab results [a definitive diagnosis of ammonia toxicosis ] is impossible to do at this point in the game. My opinion is that the most logical explanation is ammonia, is the urea, the cattle ingested urea. Urea is converted to ammonia by the bacteria in the rumen. The ammonia reached toxic levels and the cattle died very quickly. They laid there for three or four days. The samples that we obtained were useless. The history fits. The exposure fits. The fact that there was a large-there was a group that died [at] the same time, rapidly, and appeared to be of the same cause, fits. And there were no other dead cattle in the area. I haven't been made aware of any other outbreak of disease or dead cattle. So, therefore, my opinion and the opinion of the pathologist at the lab and the chemist was that these cattle died from ammonia.
....
[T]he applicator applied urea to the wheat field. The herdsman reported that the urea was also applied to the pasture where the cattle were, the edge of the pasture. And shortly thereafter, a day or two after that, they all were found dead.
In support of its motion for summary judgment, Parker also offered the deposition of Hunter Jackson, the driver of the tractor used to spread the fertilizer on the adjacent field. Jackson stated that he was spraying urea and ammonia sulfate on about eight acres adjacent to the cow pasture and that he spread about 100 pounds of urea fertilizer per acre. He used a sprayer that distributed the urea pellets over a distance of 77 or 78 feet, or about 36 feet to either side of and behind the tractor. Jackson acknowledged photographs of the field that showed tractor-tire tracks "somewhat close" to the fence between the properties. Finally, Jackson conceded that cattle could die from eating enough urea, although he did not see any cows on the other side of the fence the day he was spraying.
Based on the depositions and the arguments of counsel, the circuit court granted Parker's motion for summary judgment. In its statements at the conclusion of the summary-judgment hearing, the court expressed concern that a jury would not "be able to do anything but speculate" as to what happened to the cows. The court concluded that "something happened but I don't know what ... [and therefore] I don't think the plaintiff has met his burden of proof." We cannot agree with the circuit court's conclusion.
The circuit court appears to have considered that the question for its consideration, on summary judgment, was whether there was enough evidence to submit to a jury. This was error. The question in this case, as in all summary-judgment cases, is whether there are issues to be tried. If there is any doubt as to whether there are issues to be tried, a summary-judgment motion should be denied. Tullock v. Eck , 311 Ark. 564, 845 S.W.2d 517 (1993). In this case, Parker, as the moving party, bore the burden of showing that there were no genuine issues of material fact. TMG, as the party opposing summary judgment, was entitled to have all doubts and inferences resolved in its favor. Summary judgment is not proper if reasonable minds could reach different conclusions when given the facts. Id.
On the facts presented in this case, we conclude that reasonable minds could reach different conclusions. We are guided by an instructive case from New York: Lehoczky v. New York State Electric & Gas Corp. , 117 A.D.2d 870, 498 N.Y.S.2d 585 (1986). In that case, the appellate division of the New York supreme court reversed a grant of summary judgment in favor of a utility company that had sprayed chemical herbicides along a right-of-way. Evidence in that case showed that Lehoczky's cows had grazed along that right-of-way within days or weeks of the herbicide spraying, and numerous cows became malnourished or died within months. Necropsies of the dead cows indicated that the cows had died of malnutrition, parasitism, and pneumonia. Lehoczky , 117 A.D.2d at 871, 498 N.Y.S.2d at 586.
The trial court granted the utility company's motion for summary judgment, and Lehoczky argued on appeal that the court erred in refusing to give him the benefit of every favorable inference to be drawn from the pleadings, affidavits, and depositions. Id. at 872, 498 N.Y.S.2d at 586. The appellate court agreed, citing Lehoczky's affidavit that outlined the chain of events that led to his cows' deaths, his expert's affidavits indicating that one of the cows had "acted like it was poisoned," another affidavit asserting that before the spraying, there had been no problems at all with the herd's health, and a veterinarian's affidavit opining that there was a "possibility that [the cows] died as a result of herbicide poisoning." Id. at 872-83, 498 N.Y.S.2d at 587. The appellate court stated:
While defendants challenge each of these expert affidavits as framed in terms of mere possibilities and thus conclusory in nature, looking to the substance and not the form, we find that each reflected an acceptable degree of certainty so as to be, in their totality, probative of the issue presented. As indicated in the [expert's] affidavit and recognized in [the veterinarian's] own report, the herbicides in question do not bioaccumulate in the body tissue. This being the case, it is not surprising that their presence was not detected in the necropsies performed, and it is doubtful that any direct evidence of herbicide poisoning was available. Moreover, since anorexia may also be a symptom of herbicide poisoning, the existence of malnutrition in several cattle is not necessarily dispositive because this diagnosis is as consistent with herbicide poisoning as it is with improper maintenance. Indeed, the records submitted by plaintiffs as to feed and health care reflect a schedule of proper maintenance. Taken in context, plaintiffs' affidavits clearly presented an arguable issue of fact as to causation sufficient to preclude an award of summary judgment.
Id. at 873, 498 N.Y.S.2d at 587.
Similarly, here, Dr. Pittman's deposition testimony "reflected an acceptable degree of certainty" that presented a material question of fact as to cause of the cows' deaths. The testimony indicated that the cows were healthy before they died; the deaths were sudden; all eighteen cows died at the same time in the same area; urea fertilizer had been sprayed within days of the deaths in the immediate vicinity of where the cows died; and urea ingestion could cause the death of a cow. Although this evidence does not prove to an absolutely certainty that the cows ate the urea, which led to their deaths, that is not the issue to be addressed at the summary-judgment stage of the proceedings. "[T]he standard to be applied in summary judgment cases is whether there is evidence sufficient to raise a fact issue rather than evidence sufficient to compel a conclusion on the part of the factfinder." Wallace v. Broyles , 331 Ark. at 65, 961 S.W.2d at 715 (citing Caplener v. Bluebonnet Milling Co. , 322 Ark. 751, 911 S.W.2d 586 (1995) ). Applying the appropriate standard, we conclude that there is a factual question as to the issue of proximate cause in this case. The circuit court therefore erred in granting Parker's summary-judgment motion, and we reverse and remand.
IV. Attorney's Fees and Costs
Finally, we note that Parker has filed a motion for attorney's fees and costs associated with the filing of its supplemental abstract and addendum, which it contended was necessitated by deficiencies in TMG's abstract. We agree that TMG's abstract and addendum are deficient, in that TMG improperly included copies of deposition transcripts in its addendum, rather than abstracting them as required by Arkansas Supreme Court Rule 4-2(a)(5)(A). In response to that deficiency, Parker submitted a supplemental abstract that properly abstracted the deposition testimony, which was essential for our understanding of the case. Supreme Court Rule 4-2(b)(1) provides that when an appeal is considered on its merits involving a flagrantly defective abstract which has been brought to an appellate court's attention by the appellee who has opted to submit a supplemental abstract in its brief, the appellate court may impose costs to compensate for the other party's noncompliance with the Rule. See Rosser v. Columbia Mut. Ins. Co. , 55 Ark. App. 77, 928 S.W.2d 813, 816 (1996). We therefore award $1,000 in attorney's fees and $31.36 in costs.
Reversed and remanded; attorney's fees and costs awarded.
Gruber, C.J., and Hixson, J., agree.
Parker took the position below and does so again on appeal that the question of causation must be examined under the analysis applicable to "toxic-tort" cases. In such cases, to survive a motion for summary judgment, a plaintiff is required to prove the following elements: (1) that the plaintiff was exposed to a toxic substance made or used by the defendant, (2) with sufficient frequency and regularity, (3) in proximity to where the plaintiff worked or lived, (4) such that it is probable that the exposure to the defendant's products caused the plaintiff's injuries. Green v. Alpharma, Inc. , 373 Ark. 378, 388, 284 S.W.3d 29, 37 (2008) ; Chavers v. Gen. Motors Corp. , 349 Ark. 550, 79 S.W.3d 361 (2002) (adopting the test in an asbestosis case). Applying this standard, Parker contends that the evidence TMG introduced below failed to satisfy the "frequency, regularity, and proximity" test, and therefore, summary judgment was appropriate because TMG could not prove the causation element of its negligence claim. See Dunaway v. Garland Cty. Fair & Livestock Ass'n, Inc. , 97 Ark. App. 181, 189, 245 S.W.3d 678, 685 (2006) ( "If a party responding to a summary-judgment motion cannot meet proof with proof on an essential element of his claim, the movant is entitled to judgment as a matter of law.").
We disagree with this analysis. In a toxic-tort case, the plaintiff's injuries are generally the result of a series of events occurring over a considerable length of time and under different circumstances. See Ga.-Pac. Corp. v. Carter , 371 Ark. 295, 303, 265 S.W.3d 107, 113 (2007) ; Baker v. Wyeth-Ayerst Labs. Div. , 338 Ark. 242, 992 S.W.2d 797 (1999). This is not a toxic-tort case; this is not a case involving a series of events occurring over a considerable length of time. This was a single event in which eighteen cows died, apparently at once and apparently of the same cause. We therefore decline to consider or apply the "frequency, regularity, and proximity" test to this factual scenario. | [
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BART F. VIRDEN, Judge
Appellants James Allen and Aleisha Bankston bring separate appeals from the Sebastian County Circuit Court's termination of their parental rights to their son, H.A. (DOB: 3-4-2013). They argue that there was insufficient evidence to establish grounds and that the trial court erred in determining that termination of their parental rights was in H.A.'s best interest. We affirm.
I. Procedural History
On June 17, 2015, the Arkansas Department of Human Services (DHS) filed a petition for emergency custody and dependency-neglect concerning H.A. Attached to the petition was the affidavit of Brooke Harrell, an investigator with DHS, in which she attested that on June 14 the Fort Smith Police Department had been called for a welfare check on the parents' home and had requested DHS's assistance. Harrell was told that there was no electricity in the home, but she saw that there were electrical cords running throughout the home and over to a neighbor's residence. The investigator saw trash and roaches, smelled garbage, and noted that it was "extremely hot" inside the home. The investigator was told that H.A. was not potty trained, that he mostly crawled, and that he could not speak. When asked why she had not enrolled H.A. in developmental classes, Bankston responded that she had not gotten around to it. Allen and Bankston were both arrested for third-degree child endangerment. DHS took a seventy-two-hour hold on H.A. A "CHRIS search" revealed that in 2013 Bankston and then newborn H.A. had tested positive for marijuana. A protective-services case had been opened but was closed approximately one month later after both parents tested negative for all substances.
An ex parte order for emergency custody was entered, and the trial court later found probable cause to issue the order based on the parents' stipulation. On August 24, 2015, H.A. was adjudicated dependent-neglected based on neglect and parental unfitness as to both Allen and Bankston. The trial court ordered DHS to develop a case plan, and the parents were ordered to obtain and maintain stable and appropriate housing, income, and transportation; complete parenting classes; submit to a drug-and-alcohol assessment and follow all recommendations; submit to drug testing; and visit H.A. regularly. Allen was ordered to submit to genetic testing to determine paternity.
A review order was entered on January 4, 2016, in which the trial court found that DHS had complied with the case plan and court orders and that the parents had minimally complied. The trial court found that Allen had produced a certificate of completion for the parenting classes; that the parents' visits with the child were inconsistent; and that the parents had submitted to drug testing, the results of which were positive. Also, the parents had failed to obtain stable housing, employment, and transportation and had failed to submit to a drug-and-alcohol assessment. The trial court found that DHS had made reasonable efforts to provide family services to achieve the goal of reunification.
On October 6, 2016, another review order was entered, and later amended, based on hearings held in May, June, and July 2016. The trial court established a concurrent goal of reunification and adoption following termination of parental rights. The trial court found that DHS had complied with the case plan and court orders and had made reasonable efforts to provide family services. The trial court found that Allen is the biological father of H.A. The trial court found that the parents have housing and had recently signed a lease for a new residence; that the mother draws disability and that the father is employed; that the mother had completed parenting classes; and that both parents had submitted to a drug-and-alcohol assessment. The trial court noted, however, that the parents had not started the recommended treatment following their assessments and that they still had criminal issues pending.
In the fifteen-months review order entered on October 17, 2016, the trial court found that the parents had completed drug treatment but that they had not resolved their criminal issues and did not have driver's licenses.
On November 28, 2016, DHS filed a petition for termination of parental rights. A hearing was held on January 26 and February 24, 2017.
II. Hearing Testimony
Bankston testified that H.A. had a complicated birth in that he had gotten stuck in the birth canal and now has a misshapen head. She said that she had been taking H.A. for therapy but then missed a couple of appointments because of her poor health. She testified that the helmet that H.A. was supposed to wear caused too much pressure on his head and had even caused "blood bruises" around the back of his head. She admitted that she had stopped using the helmet against medical advice. She said that H.A.'s doctor had tried to force the helmet back on H.A.'s head but had eventually given up and instructed her to rotate his head from side to side. She said that she had attended only one doctor's appointment for H.A. but that it was the only one that she had been notified to attend. Allen stated that, although a doctor had instructed them to have H.A. wear a helmet, he and Bankston had deemed it harmful to the child and discontinued using it. He said he understood that the child needed another helmet but that his insurance would not cover it and that they did not have $5,000 to pay for it. Robbie McKay, a DHS caseworker, testified that there was a discussion early on that H.A. needed surgery to reshape his head but that it was later determined that there will be no surgery and that H.A.'s head will be monitored every six months and then every year.
Kayla James, a special-education teacher at Forrester Davis Development Center in Clarksville, testified that H.A. receives physical, occupational, and speech therapy and day habilitation services. She said that, compared to a typical four-year-old child, H.A. was operating as a child of approximately two and a half years. She stated that H.A. will likely continue to need the therapies until he transitions to public school. James described H.A. as a "very, very active" child and said that he has behavioral issues, including aggression, that he needs very close, "if not one-on-one," supervision at all times, and that he has "a very rough time" with change. She said, "[T]here is no rest for a caregiver with this young man." James said that H.A. does not observe nap time at the facility and that he must be given "busy work" or toys so that he does not wake the other children. She testified that, if a parent had a dizzy spell or needed to be in bed, that would be "an issue." James said that the center's disciplinary team had recommended that H.A. be evaluated for autism and ADHD. James said that whoever cared for H.A. outside of class needed to follow the same behavior plan at home. She said that the foster parents had stayed in daily contact with the center. James testified that it was the center's policy not to speak with the biological parents when a child is in foster care.
Linda Butler, a court appointed special advocate (CASA), testified that H.A. is a special-needs child who "did not get the best start in this world." She said that she was concerned that if H.A. is returned to his parents, he will not get the care he needs to meet his full potential. She said that H.A. will have problems most of his life. A CASA court report was entered into evidence. The background information included the following:
[H.A.] was born prematurely at 7 months at Sparks Regional Medical Center then transferred to Mercy NICU unit. [H.A.'s] birth was complicated by the lack of prenatal care and the presence of drugs in both mother and child. At five (5) months old he was taken to Arkansas Children's Hospital Pediatric and Reconstructive Craneo Maxillo-Facial surgery clinic. It was recommended to have physical therapy and a helmet for the treatment of Plagiocephaly and Torticolis. This recommendation was not followed through by the mother. After several visits, [H.A.] did not arrive at his appointments.
[H.A.] was enrolled in several programs to help his condition. Bost, AHEC, and Gregory Kistler Center, all at the local level, reported that he was dropped from the program because excessive no-shows.
A PACE evaluation given on July 8, 2015, when [H.A.] was 2 years and 4 months old showed him to be at a 17 month old level.
CASA reported the following current facts:
The parents are now living in a house, and have a vehicle. The vehicle does not have a license plate. Neither have a driver's license. James Allen admits he has driven for years just has never had a license. James Allen is unemployed again. Aleisha Bankston is drawing SSI.
They still have the Child Neglect charges pending. They entered a plea of "guilty" and were ordered to spend 30 days in jail in June, 2016. This was appealed, and then the case continued.
It is apparent to CASA they have no regard for the law.
[H.A.] is progressing with the foster family. He receives PT, OT and speech therapy at the Forrester Davis Center. The foster parent takes him to all his appointments, and transports him to the DHS office for visitation.
[H.A.] was moved up in his class at Forrester Davis in November and is having trouble adjusting to the larger class. It takes him a while to adjust to changes in his life. He is doing very well with the Foster Family and their family. He is learning from the other children.
Recently [H.A.] has received new prescription eye glasses, and has regular dental check ups. He is taken to the doctor for regular check ups and any other needs.
In recommending termination of Allen's and Bankston's parental rights, CASA reported that it was concerned with the parents' instability and continued legal issues, which could be detrimental to H.A.'s development. CASA further noted that H.A. needed constant care, supervision, and consistency in the medical treatment he is receiving.
Bankston testified that she had been brushing H.A.'s teeth but that they were nevertheless decaying because he has a genetic condition. According to Bankston, H.A. had a dentist appointment scheduled for two weeks after he had been taken away by DHS, but he had not been to see a dentist before that. Dr. Marty Hardison, a dentist, testified that he had seen H.A. six times and that the child had four teeth that were decayed and in need of crowning. He said that the decay was "fairly deep" but not into the nerves yet. Dr. Hardison testified that, although genetics can play a role in tooth decay, he did not think that was the case with H.A. He stated that between August 2015 when he first saw H.A. and March 2016 when he was referred for crowns, H.A.'s teeth had gotten "worse, to some degree." He said that, since receiving crowns, there had been no more tooth decay. Dr. Hardison said that he had delayed a referral for crowns because of H.A.'s young age.
Bankston admitted smoking marijuana while she was pregnant with H.A. She said that DHS had provided her a referral for a drug-and-alcohol assessment "way later on in the case" and that she had completed the assessment and the recommended outpatient treatment. Bankston said that she had submitted to a hair-follicle drug test but had refused to submit to the "benzos" test because she "just didn't want to."
Allen stated that when he went for hair-follicle drug testing, he had been asked to take a test for "benzos" but that he had refused because he claimed that a DHS caseworker had been ordered by the court to stop testing him any other way but by hair-follicle drug testing. The trial court interjected and denied having given any such order. Allen testified that his referral for a drug-and-alcohol assessment had been dated February 2016. Loretta Dunn, an employee of Paramedical Services, testified that Allen and Bankston had told her that they could not make their appointment for their "benzos" test because they did not have transportation. She said that the parents had requested that it be rescheduled but that they had not shown up for that appointment.
McKay said that Bankston's drug test on July 20, 2015, was positive for THC; that on September 2, 2015, the test was negative; that on October 21, 2015, the test was negative; that on April 6, 2016, the test was positive for opiates, oxycodone, and THC; that her test on December 14, 2016, was negative; and that her hair-follicle tests in June 2016 and January 2017 were negative. She said that Allen's drug screen on July 20, 2015, was positive for THC; that on August 3, 2015, his test was negative; that on October 21, 2015, the test was positive for THC; that on April 6, 2016, the test was abnormal; and that on December 14, 2016, the test was abnormal. McKay said that the parents' first "benzos" test had been scheduled for January 13, 2017, but that the parents did not have a ride; that the second appointment had been scheduled for January 18, 2017, and that, while the parents had submitted to the hair-follicle tests, they had refused the "benzos" test; and that the "benzos" test was rescheduled for February 10, 2017, and that the parents did not make that appointment. McKay said that she did not reschedule after that and did not inform the parents of the rescheduled date arranged by Paramedical Services and DHS's financial coordinator because she would not have allowed the parents to submit to a test that they had planned to take.
Dr. Aaron White, a family practitioner with training in reading and interpreting drug tests, testified that a urine test tells of most recent drug use, while a hair-follicle test covers an extended period-about a ninety-day detection window. In summarizing the results of the parents' drug tests, Dr. White said that there was "good evidence" that Bankston had been using marijuana before April 2016 but "no good evidence" after that period, and there was "good evidence" that Allen had been using marijuana before October 2015 but "no good evidence" after that period.
Bankston testified that she has lived at her new residence for five or six months. Before living at the new residence, she had stayed with her grandmother, at a dog-rescue shelter until it had closed, and in her ex-husband's apartment. Both parents testified that CASA had visited the new home five or six times but that DHS had visited the home only one day before the hearing. Allen testified that he and Bankston are not married but have been living together for approximately six years. He said that no one had discussed with him anything that he needed to change in the new home and that DHS had "actually seemed content." He testified that he and Bankston smoke cigarettes and that he smokes a pack every day. McKay testified that for the first year that the case was open, Allen and Bankston did not have appropriate housing. She said that they have been in their current home since June 2016. She described the home as "very small." She said that a utility room had been converted into a bedroom for H.A. She said that H.A.'s room was cold and that there were space heaters in the living room. McKay said that she had observed dirty dishes in the sink, a lot of clutter on the kitchen table, and "hundreds" of cigarette butts on the ground outside the home. She said that the current home's condition was cluttered but "not horrid." She saw a few safety issues in having medications and a cigarette lighter within the child's reach.
Bankston stated that she is not employed but draws $738 a month in disability benefits. Allen stated that he is currently unemployed. He said that his employment ended due to health reasons but then said that he had been terminated for extended leaves of absence in that he had missed almost a month from work. Allen said that the reason his employer had terminated him was "wrong" and that he is drawing unemployment benefits in the amount of $81 a week. He said that he intends to file for disability at a later date, but he later testified that he had already applied for disability but had been denied.
Bankston testified that she and Allen now have transportation in that they had bought a van a couple of months before the hearing. She admitted that the van is not insured and does not have tags. She stated that she still does not have a driver's license but that there is nothing preventing her from getting a driver's license and that she could go take the test that day. Bankston said that her grandmother drives them where they need to go. Allen testified that he had previously failed a driver's test but that he now has a driver's permit and will get his license within probably two to three weeks. Julia Hollis, Bankston's grandmother, testified that she helps Allen and Bankston, mainly with transportation but also with "a little financial help until they [get] some money coming in." She said that early on in the case she and Bankston had an argument; they had separated for a while because Hollis "felt like [she] needed to step back and they needed to both step up and take their own responsibility." She said, however, that she is willing to provide them with transportation for as long as they need it and is willing to take H.A. to appointments.
Bankston agreed that she still has pending criminal charges but stated that she has appealed. Allen said that his next court date for his criminal charges is thirty days away because he had gotten a continuance. He explained that "they are following the outcome of this right here is what they're doing, they are postponing so that the misdemeanor will follow this court date."
McKay testified that she had been present for some of the visits between H.A. and his parents and that she did not see a bond in that H.A. did not appear to recognize them as his parents. She said that H.A. is just as happy to play with her as he is to visit with his parents. She said that, when the visits are over, H.A. runs straight out to the lobby to his foster father and is ready to go. McKay said that, although H.A. has special needs, H.A. is adoptable. She said that his foster parents are considering adopting him. She said that H.A. still has medical issues in that he needs speech therapy, occupational therapy, and physical therapy to help with his developmental delays. She said that she is concerned that the parents are not taking proper care of themselves to ensure that they are healthy enough to take care of H.A.
Bankston testified that her health is "wonderful." She said that she has diabetes, high-blood pressure, and stomach issues but that they are "under control." She added that she has anxiety and depression since H.A. had been taken by DHS. She admitted missing visits with H.A. in early spring but said that she had been sick during that time. She conceded that she was not "doing very well" in the beginning of the case but that she had finally gotten "a doctor who would do his job." She said that she takes eight or nine medications and that her medications had "stabilized." Bankston stated that she had been made aware of only two medical appointments for H.A.-she attended one but missed the other one because she could not get there given that she was in the emergency room. Bankston said that she and Allen had made inquiries at the Gregory Kistler Treatment Center about an appointment for their son in the event he is allowed to return home.
Allen testified that he has COPD, or chronic obstructive pulmonary disease, had his esophagus "opened up" recently, and has issues with his heart, liver, and stomach. He agreed that he has health problems but stated that he is under a doctor's care and that his medical issues are being "handled." Allen said that he has two cardiologists and that, although he was supposed to have had a stress test because they thought he might have been having a heart attack, he had not gone back to take the test. He said that the cardiologists had also wanted to admit him to the hospital but that he had refused to stay. McKay said that she was shocked by Bankston's testimony that she is healthy and said that Allen had described himself to her as "a ticking time bomb."
Allen further testified that he cannot see his primary-care physician because he has an outstanding balance of $185. Allen stated that he has a stack of unpaid medical bills at home and guessed that he owes a few thousand dollars. He testified that he does not always go for his follow-up appointments because "you know, you change doctors and so forth." He also said that he did not follow up because he owed money, was required to pay cash up front, and could not afford to go back. Allen stated that he does not have any payment plans in place with the doctors or hospitals. Allen was asked, "So let's say your child needed medical attention and you don't have enough money-?" Allen responded, "Well, that's totally different there," explaining that H.A. does not have a copay for visits.
III. Order Terminating Parental Rights
Pursuant to Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2017), an order forever terminating parental rights shall be based on a finding by clear and convincing evidence that it is in the best interest of the juvenile, including consideration of the likelihood that the juvenile will be adopted if the termination petition is granted and the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). The order must also find by clear and convincing evidence one or more grounds. Ark. Code Ann. § 9-27-341(b)(3)(B).
On June 2, 2017, the trial court entered its order terminating the parental rights of both parents. The trial court found that termination was in H.A.'s best interest, considering adoptability and potential harm, and found three grounds for termination, as alleged by DHS in its petition. Those grounds include: Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (twelve-month failure to remedy); Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) (subsequent factors); and Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(3)(A) & (B) (aggravated circumstances).
IV. Standard of Review
We review termination-of-parental-rights cases de novo. Williams v. Ark. Dep't of Human Servs. , 2013 Ark. App. 622, 2013 WL 5872757. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Camarillo-Cox v. Ark. Dep't of Human Servs. , 360 Ark. 340, 201 S.W.3d 391 (2005). On appellate review, this court gives a high degree of deference to the trial court, which is in a far superior position to observe the parties before it. Id. Termination of parental rights is an extreme remedy and in derogation of the natural rights of parents, but parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Friend v. Ark. Dep't of Human Servs. , 2009 Ark. App. 606, 344 S.W.3d 670.
V. Discussion
A. Statutory Grounds
Proof of only one statutory ground is sufficient to terminate parental rights. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. We affirm the termination order as to both parents under the aggravated-circumstances ground. Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a)(3) provides as a ground that the parent is found by a court of competent jurisdiction to have subjected any juvenile to aggravated circumstances, which means, among other things, that a determination has been or is made by a judge that there is little likelihood that services to the family will result in successful reunification. Under this ground, DHS alleged in its petition that
[t]he parents have completed most of the services that were asked of them. However, they did not do so until the permanency planning hearing and a concurrent goal of adoption following termination was added to the case. The parents have not shown stability in housing, employment, or transportation and have not developed a strong bond with the juvenile. The parents still have criminal charges pending from the beginning of the case. The mother has been in [and] out of hospital ERs and has not been able to handle her own health. It is unlikely that given the extensive needs of the juvenile, those needs would be met by the parents. The parents missed a number of visits for a period of time and it was only until family forced them to come that they resumed visits. Visitation was inconsistent, at best, from around September 2015 until mid-March 2016. It is unlikely that given more time and services that the juvenile would be able to successfully reunify with his parents given the needs of the juvenile and the parents.
The trial court specifically found that there was little likelihood that services to the family would result in successful reunification. The trial court found that both parents have had extensive health issues throughout the pendency of the case in that Bankston has been hospitalized and bedridden at times and that Allen has significant health issues but does not follow his doctors' advice. The trial court noted that H.A. needs speech, occupational, and physical therapies; that he is four years old but functioning as a much younger child; and that he is under a physician's care to monitor the shape of his head. The trial court found, "Based on the parents' continued inability to adequately take care of their own health needs and the fact that they willfully failed to care for the juvenile's significant medical and dental needs, the Court has serious concerns regarding their ability to properly care for this child."
1. Allen
Allen argues that the trial court's concern was not that he is too sick to care for H.A. but that "because he doesn't properly take care of himself, then he likely would not care enough to take care of H.A.'s medical needs." He first argues that how a parent addresses his own health is not a valid indicator of how he will address his child's health and that he has a fundamental liberty interest in refusing medical care for himself. Allen asserts that the trial court's finding that he will not care for his child's medical needs is speculative. Allen also argues that this ground assumes that he has received initial services, which he did not, and points out that DHS did not offer him any services "to encourage/force/entice him to better address his own medical needs."
McKay testified that Allen had described himself as "a ticking time bomb" in terms of his health. Allen, who has heart issues, testified at the termination hearing that he had been advised by doctors that he needed to undergo a stress test and that he should have been admitted to the hospital. Allen conceded that he had disregarded that advice. Also, Allen has COPD, yet he smokes a pack of cigarettes every day. In Jones v. Arkansas Department of Human Services , 361 Ark. 164, 205 S.W.3d 778 (2005), our supreme court affirmed the termination of parental rights because the mother had "repeatedly exercised poor judgment, especially with regard to her own health needs." Id. at 185, 205 S.W.3d at 790.
Allen has a right to refuse medical treatment, but the evidence showed that he had also disregarded medical advice about H.A.'s needs. H.A.'s doctor had prescribed a helmet to treat an issue with the child's misshapen head. Allen decided that wearing the helmet was harmful to H.A. and discontinued its use contrary to medical advice. Moreover, when H.A. was born, doctors had advised the parents that H.A. was developmentally delayed and needed therapies to address those delays. There was evidence that H.A. had been dropped from various treatment centers because of excessive no-shows.
Allen complains that DHS did not offer him any services designed to encourage him to take care of his health. Allen does not articulate what particular services that DHS could have offered him to accomplish this, and we know of no such services. Besides, Allen pointed out that he has a right to refuse medical treatment. Being physically and mentally healthy-in order to be capable of taking care of his child and the child's health needs-should be enough of an incentive. Here, the trial court repeatedly found that DHS had made reasonable efforts to provide family services, including parenting classes, counseling, transportation assistance, drug testing, drug-and-alcohol assessments, drug treatment, HUD assistance, and visitation. We cannot say that the trial court clearly erred in terminating Allen's parental rights to H.A. on the aggravated-circumstances ground.
2. Bankston
Bankston argues that she did everything that was requested of her in that she completed drug treatment; she had not tested positive for drugs for ten months; she completed parenting classes; she visited H.A. and went to his medical appointments; she sought out services for H.A.; she attended court and two case-plan staffings; she acquired disability income; she bought a vehicle; and she was clearly able to find transportation despite not having a driver's license. Bankston complied with the case plan, for the most part, but even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Shaffer v. Ark. Dep't of Human Servs. , 2016 Ark. App. 208, 489 S.W.3d 182.
Bankston contends that it is "undisputed that there were no services offered to her to alleviate the concerns regarding her health or H.A.'s care or budgeting." Bankston does not indicate what particular services DHS could have offered her to maintain her own health, and we know of no such services. As for H.A.'s care, Bankston attended only one of two medical appointments for H.A. She first claimed that she had not received notice of the second appointment but later said that she could not attend because she was in the emergency room. There was no evidence that Bankston needed assistance with budgeting-only that she needed to obtain income, which she did through acquiring disability benefits, and she testified that her grandmother controlled her disability check. Here, the trial court repeatedly found that DHS had made reasonable efforts to provide family services.
Bankston further argues that it was speculative for the trial court to terminate her parental rights because DHS did not prove that her medical conditions impaired her ability to safely parent H.A. DHS did not need medical records or testimony to show that Bankston's health interfered with her ability to parent H.A. That came from Bankston's own testimony or what she reported to others. Bankston testified that she had missed a substantial number of visits with H.A. because she was sick; that she was too sick to get out of bed to clean her house; that she had failed to take H.A. to therapy because her "health got in the way"; and that she had missed a doctor's appointment for H.A. because she was in the emergency room. We are not left with a definite and firm conviction that the trial court made a mistake in terminating Bankston's parental rights to H.A. on the aggravated-circumstances ground.
B. Best-Interest Determination
Two factors to consider in determining best interest are the likelihood of adoption and the potential harm caused by returning the child to the custody of his or her parents. See Ark. Code Ann. § 9-27-341(b)(3)(A). Neither parent challenges the trial court's finding that H.A. is adoptable. Instead, they both argue that the trial court erred in finding that there was potential harm in returning H.A. to their custody. The trial court was not required to find that actual harm would occur if the child was returned to the parents, nor was it required to affirmatively identify a potential harm. Curtis v. Ark. Dep't of Human Servs. , 2017 Ark. App. 465, 527 S.W.3d 762. The potential-harm evidence must be viewed in a forward-looking manner and considered in broad terms. Harbin v. Ark. Dep't of Human Servs. , 2014 Ark. App. 715, 451 S.W.3d 231. In determining potential harm, the trial court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent's care and custody. Id.
Allen and Bankston point out their accomplishments; for example, they have a stable and appropriate home, they have income, they have transportation or a transportation plan, and they are not using drugs. Allen further asserts that H.A. is not "a medically fragile child" in that he is to have annual follow-ups on his misshapen skull, he needs normal dental visits, and he needs to be enrolled in developmental daycare, about which he and Bankston have already made inquiries. Both parents also complain that DHS failed to offer appropriate services. Specifically, Allen claims that he was not offered medical-education services, and Bankston claims that she was not offered services to maintain an appropriate home or services "to learn all the necessary requirements to parent J.H. [sic] to DHS and the trial court's satisfaction."
The trial court's weighing the evidence differently than the parents wanted it weighed is not reversible error. Cox v. Ark. Dep't of Human Servs. , 2015 Ark. App. 202, 462 S.W.3d 670. To reverse on this basis would require this court to act as a super fact-finder or second-guess the trial court's credibility determination, which is not our function. Id.
The parents have a history of neglecting H.A.'s medical and dental needs, which represents potential harm. Gulley v. Ark. Dep't of Human Servs. , 2016 Ark. App. 367, at 9, 498 S.W.3d 754, 760 ("A parent's past behavior is often a good indicator of future behavior."). There was testimony that H.A. will not reach his full potential if he does not continue to receive therapies to address his developmental delays. This is potential harm.
As for services, Allen was invited to attend two medical appointments for H.A., but his attendance was excused after he said that he could not attend due to his work schedule. Bankston says that she was not given home services, but the trial court concluded that she had an appropriate, albeit small, home. She also asserts that she was not given services to learn how to parent H.A., but she was offered and completed parenting classes.
The purpose of the termination-of-parental-rights statute, Ark. Code Ann. § 9-27-341(a)(3), is to provide permanency in a juvenile's life in all instances in which the return of a juvenile to the family home is contrary to the juvenile's health, safety, or welfare, and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile's perspective. We note that H.A. has been out of his parents' custody for over two years, and there was testimony that H.A. did not appear to have a strong bond with his parents during visits. On the other hand, there was testimony that H.A. is with foster parents who are considering adopting him and that they have seen to all his developmental delays and his medical and dental needs. Under these circumstances, we cannot say that the trial court clearly erred in finding that termination of parental rights was in H.A.'s best interest.
Affirmed.
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LARRY D. VAUGHT, Judge
Joseph DeWayne Duren was found guilty by a Faulkner County jury of internet stalking of a child pursuant to Arkansas Code Annotated section 5-27-306 (Repl. 2013) and was sentenced to 240 months in prison. On appeal, Duren challenges the sufficiency of the evidence supporting his conviction. We affirm.
At trial, fourteen-year-old B.T. testified that in mid-2015 she used her phone to message Duren, who was twenty-three years old at the time, using an internet-based phone application called Snapsext. B.T. told Duren that she was twenty-six years old. B.T. did not meet with Duren and did not send him any pictures of her.
On February 1, 2016, Jason Bollinger, B.T.'s guardian, discovered that B.T. had been messaging Duren. Bollinger confiscated B.T.'s phone, changed the passwords on the Snapsext website, and gave the phone to Chad Meli of the Faulkner County Sheriff's Department. Officer Meli confirmed that on February 1, 2016, he received a phone from Bollinger along with a report that a fourteen-year-old girl had been using the phone to message Duren on Snapsext. That day, Officer Meli extracted the Snapsext data from the phone. The Snapsext conversations between Duren and B.T.-who said she was twenty-six years old-were sexual in nature. At one point, B.T. asked Duren at what age was the youngest girl he would have sex with, to which Duren said sixteen. B.T. (lied and) said that her sister, who was fourteen and a virgin, wanted to have sex with someone "who knows what they're doing." Duren responded, "This will sound shallow so I'm sorry for this, but what does she look like?" B.T. did not respond. That was the final Snapsext conversation between B.T. and Duren.
Officer Meli, acting as "B.T.," attempted to communicate with Duren on Snapsext, but Duren did not respond. Officer Meli, again acting as "B.T.," texted Duren's cell phone, and he responded. "B.T." immediately told Duren that she was not twenty-six years old and that she did not have a younger sister. "B.T." told Duren that she was fourteen years old. Duren and "B.T." discussed what it would be like for "B.T." to have sex for the first time. Then "B.T." asked Duren if he ever came to Conway. Duren responded that he was in Little Rock almost every night for school. "B.T." said, "[Y]ou should sneak me out one night." At this point, Duren texted, "Let's say I did tonight. What would you want me to do?" "B.T." responded, "I wanna try and go all the way."
Then Duren and "B.T." texted each other a picture. The State introduced the photographs into evidence. In the picture Duren sent to "B.T.," he was holding his friend's baby. The picture "B.T." sent to Duren depicted a prepubescent female holding a stuffed animal. Duren and "B.T." agreed that if Duren traveled to Conway that night, "B.T." would sneak out to meet him at Harps grocery store. He described his vehicle. "B.T." asked Duren to bring some rum, and he agreed. "B.T." also asked if Duren had a "rubber," because she did not want to get "preggers," and Duren said he had condoms. "B.T." told Duren to text her when he arrived at Harps, and he did. Officer Meli arrested Duren in the Harps parking lot. The search of his vehicle revealed condoms, K-Y Jelly, a bottle of rum, a knife (tucked between the driver's seat and the console), and his cell phone.
Duren testified at trial that he had messaged B.T. on Snapsext one time in mid-2015. He said that he thought he had been talking to a twenty-six-year old woman during that chat and that he was not "thinking straight" when he made comments about B.T.'s sister because he was "inebriated." He said that he tried to message B.T. again on Snapsext, but she did not respond. He said that about six months later he received text messages from whom he thought was B.T. He admitted that he knew at that time B.T. was fourteen years old and that she was asking about how to lose her virginity. He testified that he did not want to sleep with B.T.; rather, he said that he showed false interest in her so that he could meet her to warn her that she was making a mistake by trying to have sex with an older man.
At trial, the defense moved for a directed verdict at the close of the State's case, and again at the close of all the evidence, arguing that there was no evidence that Duren used the internet to entice B.T. into a meeting for sex. The circuit court denied the directed-verdict motions. Thereafter, the jury convicted Duren of internet stalking of a child. This appeal followed. Duren's only argument on appeal is that the circuit court erred in denying his motion for a directed verdict because the State lacked sufficient evidence to show that he used a "computer online service, internet service, or local internet bulletin board" to arrange a meeting with a fourteen-year-old girl to engage in sex.
We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Kelley v. State , 103 Ark. App. 110, 114, 286 S.W.3d 746, 749 (2008). In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Id. , 286 S.W.3d at 749. We affirm a conviction if substantial evidence exists to support it. Id. , 286 S.W.3d at 749. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Id. , 286 S.W.3d at 749. We defer to the jury's determination on the matter of witness credibility. Id. , 286 S.W.3d at 749. Jurors do not and need not view each fact in isolation; rather, they may consider the evidence as a whole. Id. , 286 S.W.3d at 749. The jury is entitled to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Id. , 286 S.W.3d at 749.
Duren's appeal requires us to interpret a statute. The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Holcomb v. State , 2014 Ark. 141, at 3, 432 S.W.3d 600, 602. When the language is plain and unambiguous, there is no need to resort to rules of statutory construction, and the analysis need go no further. Id. , 432 S.W.3d at 602. We review issues of statutory interpretation de novo because it is for the appellate court to decide what a statute means. Id. , 432 S.W.3d at 602. When dealing with a penal statute, the appellate court strictly construes the statute in favor of the party sought to be penalized. Id. , 432 S.W.3d at 602.
The relevant statute, Arkansas Code Annotate section 5-27-306(a), entitled "Internet stalking of a child," states as follows:
(a) A person commits the offense of internet stalking of a child if the person being twenty-one (21) years of age or older knowingly uses a computer online service, internet service, or local internet bulletin board service to:
....
(2) Seduce, solicit, lure, or entice an individual that the person believes to be fifteen (15) years of age or younger in an effort to arrange a meeting with the individual for the purpose of engaging in:
(A) Sexual intercourse;
(B) Sexually explicit conduct; or
(C) Deviate sexual activity [or]
....
(4) Compile, transmit, publish, reproduce, buy, sell, receive, exchange, or disseminate the name, telephone number, electronic mail address, residence address, picture, physical description, characteristics, or any other identifying information on an individual that the person believes to be fifteen (15) years of age or younger in furtherance of an effort to arrange a meeting with the individual for the purpose of engaging in:
(A) Sexual intercourse;
(B) Sexually explicit conduct; or
(C) Deviate sexual activity.
Ark. Code Ann. § 5-27-306(a)(2), (4).
On appeal, Duren concedes that his 2015 Snapsext conversations with B.T. took place over the internet; however, he argues evidence from those conversations fails to support his conviction for internet stalking of a child because Duren thought he was conversing with a twenty-six-year-old woman and no meeting was set up. We agree. While there is no question that the Snapsext conversation occurred on the internet, the evidence was undisputed that during the Snapsext conversations, Duren believed he was communicating with a twenty-six-year-old woman and no meeting was arranged. Thus, these conversations fail to support Duren's conviction under section 5-27-306(a).
Regarding Duren's text messages with Officer Meli, acting as "B.T.," Duren admitted that he believed he was communicating with a fourteen-year-old girl. During this conversation, Duren and "B.T." discussed having sex, they exchanged pictures, there was undisputed evidence that Duren and "B.T." arranged a meeting, and there was evidence that the meeting was for the purpose of engaging in sexual intercourse, sexually explicit conduct, or deviate sexual activity. However, Duren argues this evidence is insufficient to support his conviction because the entirety of the 2016 communications "took place exclusively in texts over cell phone voice lines " (emphasis in original)-not over the internet as required by statute.
This issue was disputed at trial. Officer Meli, who was qualified as an expert witness in extracting data from computers and mobile devices, testified that after he seized Duren's cell phone, he (Officer Meli) extracted the texts and photographs Duren had exchanged with "B.T." Officer Meli stated that the text messages had been sent over the phone line; not the internet. However, he also testified-several times-that the pictures that Duren and "B.T." exchanged had been sent over the internet:
Q: The pictures ... are they sent in the same way, the same manner that text messages are sent?
A: They are not, no, ma'am.
Q: How are they sent?
A: They're sent over data. Text messages are sent over just voice lines. Text messages are able to be converted over the voice lines. Multimedia messages, photographs, videos, things of that nature require data so they're not able to go over the same-the same manner.
Q: Okay. How are they transmitted then? How is data transmitted-
A: Sure.
Q: -if it can't go over the voice line?
A: Online via the internet.
....
Q: So [the photographs] pass[ ] through the internet.
A: Correct.
At trial, Officer Meli was cross-examined on this issue, yet the officer's opinion did not change:
Q: I guess what I'm having a problem with is how is the internet involved in the te[x]t messaging conversation that you're having with [Duren]?
A: When they do the conversion to data just for the photographs that were exchanged.
Q: And you're talking about where he's holding what he says is his niece.
A: Correct. And he asked what I looked like and I provided him a photograph of my undercover photograph.
Q: And so that was the only time that the internet was used as far as when the text messaging started. Is that correct.
A: Correct, yes, sir.
Officer Meli maintained that the two photographs were sent via the internet.
On appeal, Duren essentially asks this court to reweigh the evidence on this point. We decline to do so. We do not attempt to weigh the evidence or pass on the credibility of witnesses; that duty is left to the trier of fact. Harris v. State , 331 Ark. 353, 355, 961 S.W.2d 737, 739 (1998). Accordingly, we hold that there was substantial evidence to support the jury's finding that when Duren and "B.T." exchanged pictures, he used the internet as required by section 5-27-306(a).
We must next consider whether the two pictures-the one of Duren holding his friend's baby and the one of a prepubescent young girl (purportedly "B.T.") holding a stuffed animal-sent over the internet are sufficient to satisfy the applicable internet-stalking-of-a-child statute. Duren contends that these pictures were "tasteful" and not explicit in any way, that the photos were not conversation, and that the "sexual talk" and the meeting that was arranged occurred in the text messages over the phone line not the internet. He argues, "[A]ll the elements that made up the requirements of section 5-27-306 were made in the texts. And the texts went over the voice lines and not the internet."
We disagree with Duren's interpretation of the statute. Section 5-27-306(a)(4) provides that a person commits the offense of internet stalking of a child if the person being twenty-one years of age or older knowingly uses an internet service to receive a picture of an individual that the person believes to be fifteen years of age or younger in furtherance of an effort to arrange a meeting with the individual for the purpose of engaging in sexual intercourse, sexually explicit conduct, or deviate sexual activity. Ark. Code Ann. § 5-27-306(a)(4). The State presented evidence that Duren solicited and received a picture from "B.T." over the internet in furtherance of his effort to arrange a meeting with her for the purpose of having sex. We note that Duren did not actually arrange the meeting with "B.T." until after he received the picture of the young girl holding a stuffed animal. This is substantial evidence that supports his conviction under section 5-27-306(a).
We acknowledge that the picture of "B.T." alone does not establish all of the required elements of section 5-27-306(a). In fact, many of the statutory elements were established in the February 2016 text exchange over the phone line. However, the plain language of subsection (a)(4) merely requires that Duren use the internet to receive a picture of "B.T." in furtherance of an effort to arrange a meeting with her for the purpose of engaging in sex. Based on Officer Meli's testimony that the picture of "B.T." was sent to Duren over the internet, along with the other evidence included in the 2016 text messages-admitted without objection at trial-that demonstrated that Duren believed "B.T." was fourteen years old and that he arranged a meeting with her for the purpose of engaging in sex, we hold that substantial evidence that supports Duren's internet-stalking-of-a-child conviction.
Affirmed.
Abramson and Hixson, JJ., agree.
At trial, Snapsext was described as an adult social-networking website focused primarily on the communication of sex-related activities and the coordination of "hookups."
Officer Meli obtained Duren's phone number from the data extracted from Snapsext; Duren had given B.T. the same cell-phone number during their Snapsext chat.
The State's evidence included the text messages, which were sexual in nature, and the condoms, K-Y Jelly, alcohol, and knife found in Duren's vehicle upon his arrest.
In March 2017, the Arkansas General Assembly amended section 5-27-306(a) as follows:
(a) A person commits the offense of internet stalking of a child if the person being twenty-one (21) years of age or older knowingly uses a computer online service, internet service, local internet bulletin board service, or any means of electronic communication to....
Ark. Code Ann. § 5-27-306(a) (Supp. 2017) (emphasis added). Duren contends that the amendment is significant because it demonstrates that the prior statute, which applies to him, was limited to internet communications and did not criminalize other types of electronic communication like texting that takes place over the phone line. While the amendment does broaden the reach of the statute beyond the use of the internet, it lacks the significance claimed by Duren because substantial evidence supports the jury's conclusion that Duren used the internet when he exchanged photographs with "B.T." | [
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KENNETH S. HIXSON, Judge
Keith Lamont Harris appeals from the Pulaski County Circuit Court's denial of his motion to transfer two of his cases to the juvenile division of circuit court. Appellant argues on appeal that the trial court's denial of his motions to transfer was clearly erroneous. We affirm.
Appellant was charged by felony information in case no. 60CR-16-3485 with two counts of aggravated robbery and two counts of theft of property stemming from an incident that occurred on August 21, 2016. The State further requested that appellant's sentence be increased pursuant to Arkansas Code Annotated section 16-90-120 (Repl. 2016) for committing the felonies while employing a firearm. In case no. 60CR-16-3487, appellant was charged by felony information with two counts of aggravated robbery and two counts of theft of property stemming from an incident that occurred on July 31, 2016. Thereafter, appellant filed a motion to transfer to the juvenile division of circuit court in each case on March 20, 2017, and a joint hearing was held on April 25, 2017.
At the hearing, Detective Julio Gil testified that he had investigated the incident that occurred on July 31, 2016, after responding to an alleged robbery with two Hispanic victims. The victims reported that four black males had robbed them at gunpoint, taking their cell phones and wallets. One of the victims was able to provide photographs of three of the four robbers after recovering a backup from his iCloud account, which led to appellant's being developed as a suspect. That victim tentatively identified appellant from a subsequent photo spread.
Detective Chris Johnson testified that he had investigated a separate incident that occurred on August 21, 2016, in which two Hispanic victims had been robbed outside the parking lot of a nightclub. One of the victims, who only spoke Spanish, was able to recover photographs of the suspects from his iCloud account, and that victim positively identified appellant in a subsequent photo spread.
Jennie Promack testified that she is appellant's juvenile-probation officer. She testified that appellant had been placed on probation in multiple adjudication cases. Appellant had been previously adjudicated delinquent for breaking or entering, criminal mischief, fleeing, and criminal trespass. Appellant more recently had been placed on a nonpriority list to attend the C-Step court-ordered boot-camp program, and appellant's brother had been attending that program. Promack testified that appellant was living at home with his mother and that the home was found to be a suitable home. Appellant's father was accidentally killed in a shooting incident when appellant was approximately five years old. Promack further testified that appellant was sixteen years old at the time of the hearing and testified regarding the various programs offered if appellant's cases were transferred to the juvenile division. She additionally stated that it was her opinion that appellant could be rehabilitated before juvenile jurisdiction would expire if the cases were transferred.
Jennifer Walker, appellant's mother, testified that she has twelve children. Walker admitted that appellant was charged with his first juvenile offense in 2012 and continued to have involvement with the juvenile-justice system thereafter. Walker testified that she did not believe that her son had robbed anyone and testified that she did not believe that her son had a firearm. However, Walker admitted that it was her son holding a handgun in one of the pictures. Walker further admitted that appellant was on probation in at least two other cases and that he had at least three other adjudications. Walker indicated that she does her best to take care of appellant but admitted that she could not be with him 100 percent of the time.
On May 1, 2017, the trial court made written findings in both cases in virtually identical orders on all of the factors enumerated in Arkansas Code Annotated section 9-27-318(g) (Repl. 2015). The following pertinent findings are from the order entered in case no. 60CR-16-3487:
1. The Defendant is charged with two counts aggravated robbery and two counts theft of property. These are serious offenses involving violence. The nature of the offenses and protection of society would favor prosecution in the criminal division of circuit court.
2. The offenses charged were committed in a violent and premeditated manner.
3. The offenses charged were committed against persons and property.
4. The culpability of the Defendant appears to be equal to that of his co-Defendants.
5. The Defendant's prior juvenile history includes three misdemeanors-fleeing, criminal mischief, and criminal trespassing-and one felony charge of breaking and entering.
6. The defendant's home environment is poor. Although DHS, after an evaluation, found that his home environment was appropriate, the Court has also reviewed the social history and disposition recommendations by Officer Jennie Promack. That document indicates that four of the Defendant's siblings have had, or currently have, juvenile court interactions. The Defendant and his siblings were removed from the mother's care and placed in DHS custody in 2004. His mother has had involvement with illegal substances, and his father was accidentally shot by someone having a psychotic drug episode in 2006. The mother testified at the hearing that the Defendant is one of twelve of her children.
7. The Defendant's date of birth is October 11, 2000. He is sixteen years old, and he was fifteen years and 9 months old at the time of these offenses. The adult division of circuit court therefore has jurisdiction pursuant to Ark. Code Ann. § 9-27-318(c)(2). The Court has carefully considered the testimony presented at the juvenile transfer hearing, particularly that of juvenile probation officer Jennie Promack. Officer Promack testified that she believed that the Defendant would benefit from the rehabilitative services provided by the Department of Youth Services. She also testified about the difference in brain functioning between juvenile offenders and adult offenders. The Court is mindful of this distinction and has taken judicial notice of the United States Supreme Court's reasoning in Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012). Officer Promack genuinely believes that this juvenile can be rehabilitated within the juvenile system. This Court hopes that all juvenile offenders may be rehabilitated within the system, but unless that system is provided with better resources, this will not happen. The Court has weighed the efficacy of these programs and services against the legitimate and necessary concerns about the protection of society from violent offenders, as required by statute. The Court is concerned with the sufficiency of the resources available to the Juvenile Division and finds that the programs in their current form would fail when applied to the circumstances of this case. There are facilities and programs available to the judge of the Juvenile Division of Circuit Court, and it is beyond dispute that this juvenile and his family are in need of these services, but the Court ultimately finds that these programs and facilities are not likely to rehabilitate this particular Defendant prior to the expiration of his twenty-first birthday.
8. The Defendant acted as part of a group.
9. The Court has reviewed documents relevant to the Defendant's history-namely, a social history and disposition created on April 7, 2016, a home evaluation done December 17, 2016, prior drug screens, and records from the Juvenile Division of Circuit Court.
10. The evidence presented at the April 2[5] hearing indicates that the Defendant was targeting Hispanic males because of their reluctance to contact authorities. A police officer testified regarding this reluctance to involve authorities within the Hispanic community. Additionally, the Defendant's brother is currently in the juvenile system and enrolled in the Arkansas National Guard's C-Step program. The Court has also considered the testimony of the Defendant's mother, who works the night shift at her job and arrived at court to testify immediately after her shift ended. The Defendant's mother testified that he is one of twelve of her children.
11. As is often the situation with juvenile transfers, this Court's decision comes down to balancing the seriousness of the offense and whether the protection of society requires the case to be kept in the criminal division. The Court has reflected on the facilities and programs available to the Juvenile Division of Circuit Court and whether those facilities and programs are likely to rehabilitate the Defendant prior to his 21st birthday. As is so often the case, the Court is presented with a single parent with a teenage son. That parent seems to have made all reasonable efforts to raise the child, but she cannot supervise him 24 hours a day and maintain the employment necessary to support her family. This young man is attempting to fit in with his peers and gain the attention and friends that any teenager would desire. As a result, he engages in behavior that he believes will garner him this attention. This does not excuse the conduct in this matter, but the Court wishes to point out that if we fail to attempt to examine and understand the circumstances of this behavior, society will continue to suffer the consequences of this problem. Pointing a firearm at someone, and robbing them of both their property and sense of security is shocking and unacceptable behavior for a child or an adult.
Therefore, based upon consideration of the foregoing, pursuant to Ark. Code Ann. Sec. 9-27-318, the Court finds by clear and convincing evidence that this case should remain in the adult division of Circuit Court. The Defendant's Motion to Transfer should be, and is hereby, ordered denied.
(Footnotes omitted.) Appellant filed notices of appeal in both cases, and we granted a motion to consolidate the cases on appeal.
Under Arkansas law, a prosecuting attorney has discretion to charge a juvenile sixteen years of age or older in the criminal division of circuit court if the juvenile has engaged in conduct that, if committed by an adult, would be a felony. Ark. Code Ann. § 9-27-318(c)(1). On the motion of the court or any party, the court in which the criminal charges have been filed shall conduct a hearing to determine whether to transfer the case to another division of circuit court having jurisdiction. Ark. Code Ann. § 9-27-318(e). The moving party bears the burden of proving that the case should be transferred to the juvenile division of circuit court. Austin v. State , 2017 Ark. App. 114, 515 S.W.3d 633 ; Z.T. v. State , 2015 Ark. App. 282, 2015 WL 1952969. The trial court shall order the case transferred to another division of circuit court only upon a finding by clear and convincing evidence that the case should be transferred. Ark. Code Ann. § 9-27-318(h)(2). Clear and convincing evidence is that degree of proof that will produce in the trier of fact a firm conviction as to the allegation sought to be established. Z.T. , supra. We will not reverse a trial court's determination of whether to transfer a case unless the decision is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a firm conviction that a mistake has been committed. Id.
At a juvenile-transfer hearing, the trial court is required to consider all of the following factors:
(1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court;
(2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner;
(3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted;
(4) The culpability of the juvenile, including the level of planning and participation in the alleged offense;
(5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence;
(6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile's home, environment, emotional attitude, pattern of living, or desire to be treated as an adult;
(7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile's twenty-first birthday;
(8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense;
(9) Written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and
(10) Any other factors deemed relevant by the judge.
Ark. Code Ann. § 9-27-318(g). Pursuant to Arkansas Code Annotated section 9-27-318(h)(1), a trial court shall make written findings on all of the factors set forth above. However, there is no requirement that proof be introduced against the juvenile on each factor, and the trial court is not obligated to give equal weight to each of these factors in determining whether a case should be transferred. Kiser v. State , 2016 Ark. App. 198, 487 S.W.3d 374.
Appellant contends that the trial court's denial of his motions to transfer was clearly erroneous. Appellant specifically argues that the trial court erroneously found that protection of society required prosecution in the criminal division and that there was a concern with whether sufficient resources were available in the juvenile division to rehabilitate him before the expiration of juvenile-court jurisdiction. Appellant further notes that a transfer to juvenile court did not exclude the possibility of appellant later receiving an adult sentence if his rehabilitation was unsuccessful or incomplete. Appellant's arguments are without merit.
Here, the trial court heard the evidence, weighed it, reached its decision, and enumerated its conclusions in an order. The trial court considered the evidence on all the factors, as required by the statute, and it was free to use its discretion in the weight afforded to each factor. Austin , supra . As noted, the trial court is not required to give equal weight to each of the statutory factors; it can rely on any of the factors so long as it considered and made written findings with regard to all the factors. Id. The trial court did not ignore the evidence that appellant cited in support of his motion or that was presented at the hearing; it simply weighed the evidence differently than appellant desired. See Brown v. State , 2016 Ark. App. 254, 492 S.W.3d 126. Moreover, when reviewing the entire evidence, we cannot say with firm conviction that a mistake has been committed. Thus, we hold that the trial court properly considered all the factors in section 9-27-318(g) and did not clearly err in denying the motions to transfer. Accordingly, we affirm.
Affirmed.
Abramson and Vaught, JJ., agree. | [
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ROBERT J. GLADWIN, Judge
In this appeal of a probation revocation in the Fulton County Circuit Court, Matthew Arnold argues that the trial court abused its discretion in denying his motion for continuance. We affirm.
I. Procedural History
Arnold pled guilty and was convicted on March 18, 2014, of possession of methamphetamine, possession of drug paraphernalia, and theft of property. He was sentenced, concurrently, to five years' probation on each count. His probation was subject to several conditions, including that he not commit a criminal offense punishable by imprisonment, that he submit to random testing for illegal substances, and that he not use, sell, or possess any controlled substance or associate with any person known to use or sell illegal drugs. A special condition of his probation was that he successfully complete the Sixteenth Judicial District Drug Court Program.
The State filed a petition to revoke Arnold's probation on September 13, 2016, alleging that Arnold had (1) tested positive for amphetamines on July 6, 2016; (2) failed to report to his supervising officer for drug testing as ordered on July 14, July 23, August 5, and August 12, 2016; and (3) failed to report to the Veterans Treatment Court as ordered on August 18, 2016. The State alleged that Arnold's whereabouts were unknown.
At the hearing on the State's revocation petition, Arnold asked that the hearing be continued because the State had subpoenaed Arnold's probation officer from Fayetteville, but Arnold's counsel did not know about the subpoena until the day before the hearing and had not talked to the probation officer. The State responded that Arnold's probation had been transferred to Washington County at Arnold's request and that the officer was going to testify about what the State pled in the petition to revoke. Arnold, through his counsel, responded, and the following colloquy occurred:
DEFENSE COUNSEL : Judge, my position on that is that there is incorrect I mean, the petition says that he was revoked from doing certain things. And cites Officer Morehead. There's a reference to someone in there without a phone number or anything like that. And it's kind of scratched through it and has Josh Morehead on it. The phone number, I've talked to Josh about it. But I didn't get a copy of the subpoena. I think it's 16-43-211, says criminal proceedings, civil procedure governs. And I think under Rule 45 I'd be entitled to receive a copy of that subpoena before the trial.
THE COURT : Make him a copy and I'll let you visit with his probation officer before we have the hearing today. I think that's fair enough. This case is getting old. So, what, this afternoon, 1:30. But before then [defense counsel] will have the opportunity to visit with the Fayetteville probation officer.
When the trial court reconvened on the same day, defense counsel renewed his motion, arguing, as he did previously, that he had not had time to prepare properly and that he was entitled to the information. The trial court denied the motion.
When the hearing resumed, Joshua Morehead, probation and parole agent for the State of Arkansas, testified that he had supervised Arnold from March 17, to August 21, 2014, when Arnold had been transferred to Washington/Madison County. Morehead said that the drug court had given Arnold two strikes for lying to the court about missing a class, failing a drug test, using synthetic drugs, and bringing in a device filled with urine to pass a drug test. He said that Arnold was sanctioned and sentenced to 56 days in jail. After that, Arnold was sent to an ACC treatment facility for 90 days then transferred to Fayetteville.
Matthew Penquite, a probation and parole agent with Washington County, testified that Arnold was placed in the Washington County Drug Court on February 11, 2015, and he tested positive for amphetamines on July 6, 2016. He said that Arnold absconded in July 2016. Penquite testified that Arnold failed to report to his probation officer on July 14, 2016. He also said that Arnold had been admitted to a veterans' treatment program within the Washington County Drug Court and had failed the treatment guidelines. Penquite said that, during the time he had directly supervised Arnold, Arnold failed to report to him four or five times.
After the defense rested its case, the trial court found that the State had proved by a preponderance of the evidence that Arnold had violated the terms of his probation by absconding in July 2016 and failing to report. The trial court noted that the only reason Arnold was back in the system was because he was picked up on a traffic stop. Arnold was sentenced to three years each for (1) possession of a controlled substance; (2) possession of drug paraphernalia; and (3) theft of property; thus, he was sentenced to nine years' imprisonment in the Arkansas Department of Correction. This appeal timely followed Arnold's convictions.
II. Standard of Review
Our standard of review from the denial of a continuance is well settled. A trial court shall grant a continuance only upon a showing of good cause and shall consider "not only the request or consent of the prosecuting attorney or defense counsel, but also the public interest in prompt disposition of the case." Ark. R. Crim. P. 27.3 (2016); Hill v. State , 2015 Ark. App. 587, 473 S.W.3d 556. When a motion for continuance is based on a lack of time to prepare, the reviewing court considers the totality of the circumstances. Hill, supra. It is within the trial court's discretion to grant or deny a motion for continuance, and this court will not reverse the trial court's decision absent a clear abuse of discretion. Id. An appellant must also demonstrate that he suffered prejudice that amounts to a denial of justice because of the ruling on the motion for a continuance. Id.
III. Motion for Continuance
Arnold argues that the trial court abused its discretion in denying his motion for continuance, which was based on the State's alleged failure to adequately disclose its witnesses. He argues that, due to the lower burden of proof in probation-revocation hearings, he was in a particularly exposed position that warranted giving him sufficient time to prepare a defense, which includes discovery. See Ark. Code Ann. § 16-93-308(d) (Repl. 2016) (burden of proof is by a preponderance of the evidence in revocation cases).
Arnold contends that his counsel was appointed on February 21, 2017, and on March 1, 2017, he filed a motion for discovery. He argues that the State's response did not include the information required under Arkansas Rule of Criminal Procedure 17.1(a)(i) (2016)-the names and addresses of persons whom the prosecuting attorney intends to call as witnesses at any hearing or at trial. He describes that, included in the State's response, there was a copy of the revocation petition signed by Officer Joshua Morehead. A handwritten note was on the petition-the name "Matthew Penquite" and a line drawn to the margin where there is another handwritten note stating the name "Joshua Morehead" and a phone number. Arnold argues that this information does not comply with Rule 17.1(a)(i) and is not sufficient to put him on notice of the witnesses the State intended to call against him. He also argues that the information was not enough for his counsel to investigate the potential witness.
Arkansas Code Annotated section 16-43-211 (Repl. 1999) provides that the "Code of Practice in Civil Cases" shall apply to coercing the attendance of witnesses and compelling them to testify in criminal actions. Arkansas Rule of Civil Procedure 45(d) (2017) provides that notice of subpoenas issued should be promptly given to all parties in the manner prescribed by Arkansas Rule of Civil Procedure 5(b) (2017). Arnold argues that the State issued a subpoena to "Matthew Pinquite" [sic] on March 3, 2017, and that the subpoena contained another error-February 23, 2017 hearing date, rather than March 23, 2017. Arnold contends that the State never provided him with notice of the subpoena. He claims that on March 22, 2017, "the defense" discovered that Mr. Penquite had been subpoenaed to be in court for the hearing on March 23, 2017.
Finally, Arnold claims that the surprise caused by the State's failure to comply with Rules 45 and 17.1(a)(i) was prejudicial to him. He states that when testimony has not been properly disclosed by the prosecution, the burden is on the defendant to establish that the omission was sufficient to undermine confidence in the outcome of the trial. Nicholson v. State , 319 Ark. 566, 892 S.W.2d 507 (1995). Further, there is no abuse of discretion in a trial court's failure to grant a continuance when there is sufficient time allowed for the defense to make beneficial use of evidence. Clark v. State , 26 Ark. App. 268, 764 S.W.2d 458 (1989). He contends that when the State is charged with knowledge of the existence of a material witness and fails in response to a discovery order over an extended period to disclose that information without explanation, it should not be assumed that in every case a cursory opportunity to interview the witness will cure the omission. Lewis v. State , 286 Ark. 372, 691 S.W.2d 864 (1985). Prejudice must be determined. Scroggins v. State , 312 Ark. 106, 848 S.W.2d 400 (1993).
Arnold contends that the court has four options for sanctions when a party has failed to comply with a discovery rule: (1) the evidence may be excluded; (2) discovery or inspection may be ordered; (3) a continuance may be granted; and (4) an appropriate order may be entered. Ark. R. Crim. P. 19.7. It is within the trial court's discretion which sanction, if any, to employ when there is a failure to comply with discovery. Reed v. State , 312 Ark. 82, 847 S.W.2d 34 (1993). Arnold contends that the State's failure to comply with the Rules as set forth above was prejudicial to him because Penquite's testimony was the basis for the revocation of his probation. He claims that had the State properly identified Penquite as required, he would have had time to review and inspect his supervision file and investigate whether other witnesses might have been available to call in his defense.
We hold that the totality of circumstances supports affirming the trial court's decision to deny the continuance motion. First, Arnold failed to clearly demonstrate how the trial court's granting of a continuance would have altered the outcome of the hearing. He has failed to point to any specific information that the continuance would have garnered that would have impacted or changed his cross-examination of Officer Penquite. See Hickman v. State , 372 Ark. 438, 277 S.W.3d 217 (2008) (no prejudice in prosecution's failure to disclose witness when defendant was given time to interview witness before trial and exercised his right to cross-examine witness, and the defendant failed to point to any specific information that additional research of the witness would have garnered that would have impacted or changed his cross-examination). In revoking his probation, the trial court relied on Arnold's failure to report; but Arnold has not shown how this finding would have been any different had the motion for continuance been granted. Populis v. State , 2011 Ark. App. 334, 2011 WL 1707288. Thus, no prejudice has been shown.
Second, the trial court did not abuse its discretion because any discovery deficiency was cured prior to the hearing. The recess granted for Arnold to interview the witness was sufficient to cure a discovery violation. See, e.g. , Nooner v. State , 322 Ark. 87, 907 S.W.2d 677 (1995) (no abuse of discretion when trial court offered opportunities for interviews of witnesses whose names were provided on the Friday before trial commenced and allowed the same opportunity for reports and documentary evidence). Thus, because Arnold was given an opportunity to interview his probation officer prior to the hearing, there was no abuse of discretion.
Third, the State claims that it made no attempt to conceal discoverable evidence. In Nooner, supra , the supreme court questioned whether the prosecutor was using last-minute preparation as a ploy or subterfuge to gain advantage over the defense. Here, the State denies that it tried to conceal any discoverable evidence, and the evidence elicited by the State proved that Arnold had violated his terms of probation by absconding for a period of eight months. This violation was what the State set forth in the original revocation petition. Therefore, the trial court committed no abuse of discretion in denying Arnold's motion for continuance.
Affirmed.
Vaught and Murphy, JJ., agree.
This information was argued by Arnold's counsel, but the petition described by counsel is not included in Arnold's appellate brief addendum or in the record of the case. | [
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BRANDON J. HARRISON, Judge
Travis Thomas asks this court to conclude that the circuit court erred when it entered a default judgment against him because the court never acquired jurisdiction over the personal-injury complaint that Phyllis and Sylvester Robinson filed against him. The jurisdiction question itself turns on whether the Robinsons satisfied the service-by-warning-order process prescribed by Arkansas Rule of Civil Procedure 4(f)(1) (2017). If they did not satisfy the rule, then the court never acquired jurisdiction over Thomas. If the court did not acquire jurisdiction, then it could not have entered a valid default judgment against him.
On 21 September 2016, the Robinsons filed a complaint against Jaylan Haskin and Travis Thomas. (Jaylan Haskin was dismissed from the case and is not a party to this appeal.) A summons was prepared that same day. In January 2017, the Robinsons moved for more time to serve legal process and explained that the summons had been "diligently provided to a process server who has diligently attempted to obtain service but cannot locate that Defendant." They asked for an additional 120 days to serve Thomas, which the court granted. On January 25, the Robinsons' counsel filed an affidavit for warning order that stated:
1. I am attorney for the Plaintiff and am licensed to practice law in the State of Arkansas.
2. Plaintiffs engaged the services of a process server to obtain service on Defendant. The professional process server attempted service on numerous occasions but has been unable to locate the Defendant. See attached Exhibit A, non-est return of service.
3. After a diligent inquiry, the whereabouts of the Defendant, Travis Thomas, remain unknown.
4. Therefore, a Warning Order should be issued for this Defendant and duly published.
The record reflects, and the parties do not dispute, that no exhibit was filed with the affidavit although paragraph 2 indicated that an exhibit was attached to the affidavit.
In due course the clerk issued a warning order. Thereafter, the Robinsons filed a second affidavit that recited (1) the warning order had been published in the time and manner required by law, and (2) a restricted-delivery mailing of the summons, complaint, and warning order to Thomas's last-known address had been "returned to sender" marked as "attempted-not known" and "unable to forward."
After Thomas did not answer the complaint within thirty days of the warning order's first publication, the Robinsons moved for a default judgment against Thomas and asked the circuit court to find Thomas liable for the reasons alleged in the complaint. The court entered a default judgment. Thomas answered the Robinsons' complaint (in early October 2017) and denied that he acted negligently or caused any harm to the Robinsons.
The Robinsons moved to strike Thomas's answer as untimely. Thomas then moved to set aside the default judgment, citing insufficient service of process. He specifically argued that the Robinsons did not make the obligatory diligent inquiry into his whereabouts as Ark. R. Civ. P. 4(f) requires. He pointed out that the affidavit failed to provide details of the attempted service effort, including the address or addresses at which service was attempted; nor did the affidavit explain any further attempts to locate Thomas. The Robinsons stood on the affidavit but attached to their response the return of service in which the process server stated, "Non-Est unable to locate defendant. Last known addresses which were no longer good were 66 Cypress Dr. Pine Bluff AR 71603 and 4400 Union Ave Apt 9 Pine Bluff Arkansas. No other addresses were found for the defendant."
The circuit court held a hearing in early December 2017, denied Thomas's motion to set the default judgment aside, and scheduled a hearing on damages. The court also granted the Robinsons' motion to strike Thomas's answer. On December 11, Thomas filed a motion to reconsider, which the court denied. Thomas timely appealed the proper orders.
Default judgments are governed by Rule 55 of the Arkansas Rules of Civil Procedure. Rule 55(c) sets forth the circumstances pursuant to which a court may set aside a default judgment:
The court may, upon motion, set aside a default judgment previously entered for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) the judgment is void; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; or (4) any other reason justifying relief from the operation of the judgment. The party seeking to have the judgment set aside must demonstrate a meritorious defense to the action; however, if the judgment is void, no other defense to the action need be shown.
Ark. R. Civ. P. 55(c) (2017). Thomas argues that the circuit court erred in striking his answer and refusing to set aside the default judgment because he was not properly served pursuant to Rule 4 of the Arkansas Rules of Civil Procedure. A service error would void the default judgment. When deciding whether a default judgment should have been set aside based on a jurisdictional defect, we review the circuit court's decision using a de novo standard of review. See Nucor Corp. v. Kilman , 358 Ark. 107, 186 S.W.3d 720 (2004) ; Self v. Hustead , 2017 Ark. App. 339, 525 S.W.3d 33.
Arkansas law requires valid service of process before a court can acquire jurisdiction over a defendant. Morgan v. Big Creek Farms of Hickory Flat, Inc. , 2016 Ark. App. 121, 488 S.W.3d 535. It is also well accepted that the service requirements must be strictly construed and compliance with them must be exact. Id.
Rule 4(f)(1) authorizes service by warning order if it appears from the affidavit of a party or his or her attorney that "after diligent inquiry, the identity or whereabouts of a defendant remains unknown." Ark. R. Civ. P. 4(f)(1). Affidavits that do not sufficiently recite the steps taken to conduct the required "diligent inquiry" fail under Rule 4. See XTO Energy, Inc. v. Thacker , 2015 Ark. App. 203, 467 S.W.3d 161. In other words, the party seeking to serve legal process using the warning-order method must provide enough detail-in the required diligent-inquiry affidavit-about the steps that were taken to locate the defendant and complete service; and the details, whatever they may be from case to case, must themselves demonstrate that a party has diligently tried to locate the defendant but cannot do so. And we reiterate that this information must be included in the affidavit when the warning order is first sought, not after the fact to bolster an otherwise insufficient diligent-inquiry affidavit. See id. at 9, 467 S.W.3d at 168 (holding that the facts showing the diligent inquiry were required to be set forth at the time the warning order was issued).
Thomas argues that the affidavit in this case was defective as a matter of law because it "offered no information, evidence or averments of any efforts, diligent or otherwise, to locate and serve Mr. Thomas." He also contends that a conclusory statement that a process server has been hired and has attempted service on numerous occasions does not chin the "diligent inquiry" pole set by Rule 4. He would also have us reject the Robinsons' attempt to belatedly support the diligent-inquiry affidavit by filing the process server's proof of service on November 17 when they responded to his motion to set aside the default judgment.
Among other cases, Thomas cites Self v. Hustead , in which this court held the following affidavit to be insufficient:
1. That I have made diligent inquiry and that it is my information and belief that the Defendant Jerry Michael Self's last known address was 3203 McDonald Avenue, Springdale, Washington County, Arkansas 72762.
2. Personal service upon Defendant was unsuccessfully attempted by Carolyn Williamson, licensed process server at said address.
3. That the Clerk of this Court should forthwith issue a Warning Order directing the defendant to appear and show cause, if any, why the relief prayed for by the Plaintiffs should not be granted.
2017 Ark. App. 339, at 2, 525 S.W.3d 33, at 35. We held that the affidavit reproduced above failed because it did not establish facts that equated to a diligent inquiry; and the affidavit failed to state that a diligent inquiry led the Husteads to believe that Self's whereabouts were unknown-a conclusion that Rule 4(f) requires.
The affidavit in this case does not lack the "whereabouts unknown" conclusion, but like the Self affidavit, the Robinsons' affidavit lacks sufficient detail regarding the efforts made to locate Thomas and personally serve him legal process before attempting to constructively serve him using the warning-order method. In reaching our conclusion we have considered the parties' arguments and contrasted this case's facts with the facts in other cases in which constructive service was upheld and believe that this case falls short. E.g. , Morgan , supra (the warning-order affidavit described four failed attempts at personal service by the sheriff's department at appellants' last-known address; provided that appellee hired a private detective and learned of a possible second address of appellants; described three failed attempts at personal service by the sheriff's department at the second address; and described unsuccessful attempts to serve the complaint via certified mail, restricted delivery to addressee only, at both the first and second addresses); Bloodman v. Bank of Am., N.A. , 2016 Ark. App. 67, 482 S.W.3d 340 (affidavit for warning order provided that appellant was no longer a resident at her last-known address; that five personal-service attempts had been made at that address; that the property had continually been unoccupied; that service by certified mail had been attempted to the post office box listed by appellant, a licensed attorney, on her pleadings and with the clerk of the Arkansas Supreme Court; and that appellant's present address was unknown).
Having applied a de novo standard of review to the Rule 4(f)(1) issue presented, we hold that the diligent-inquiry affidavit the Robinsons filed to support their warning-order effort was insufficient. The affidavit failed to provide any details of the attempted service, including the address or addresses at which service was attempted, and failed to explain any further attempts to locate Thomas. Because it is conclusory, the affidavit did not meet Rule 4's "diligent inquiry" requirement. Insufficient service of process can void a judgment; and a void judgment can in turn be set aside. See Wright v. Viele , 2013 Ark. App. 471, 429 S.W.3d 314 ; Ark. R. Civ. P. 55(c)(2). We therefore reverse the circuit court's order that both struck Thomas's answer and denied his motion to set aside the default judgment and remand for further proceedings consistent with this opinion.
Reversed and remanded.
Abramson and Brown, JJ., agree.
Thomas has appealed pursuant to Ark. R. App. P.-Civ. 2(a)(4) (2017), which allows an appeal from an order that strikes an answer. Our supreme court has construed this rule to authorize an appeal when an answer has been struck, even if a final judgment has not yet been entered. See Arnold & Arnold v. Williams , 315 Ark. 632, 870 S.W.2d 365 (1994) (allowing an interlocutory appeal of a default judgment although no damages hearing had yet been held). | [
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BRANDON J. HARRISON, Judge
Hostility. It's a term of art under Arkansas's adverse-possession law and is front and center in this appeal, which primarily asks: Can Garland Gilmore and Lesha Prater prevail on their adverse-possession claim against Sean and Kim Collier if Garland Gilmore believed he owned the disputed tract of land for some forty years, has possessed and farmed the disputed area for the same length of time, but was initially mistaken on where the relevant deed placed the true boundary line? This mistaken-boundary-line case "brings us to the most difficult, thoroughly maddening, question in all adverse possession, whether an adverse possessor's subjective state of mind, imprecisely often called 'intent,' can destroy hostility." William B. Stoebuck & Dale A. Whitman, The Law of Property § 11.7, at 857 (3d ed. 2000).
I.
In addition to the common-law element of hostility, the testimony elicited from Garland Gilmore during the bench trial on his adverse-possession claim-and the Colliers' stipulation that an additional five witnesses would have agreed with Garland's testimony regarding where the Lyn and Myrtle Holder/Gilmore boundary line was located-decide this case. The Holder/Gilmore boundary matters to the Colliers because they are the Holders' successors to that boundary line and can take no greater title than the Holders held.
No one disputes that the parties in this case acquired title to their respective properties from the Holders. It is also agreed that, since 1972, Garland Gilmore has farmed either soybeans or rice on the disputed strip of land although the deed Gilmore received from the Holders did not include the disputed land. The disputed area that Gilmore claimed through adverse possession is an irregularly shaped strip to the east of the Collier homestead and a thin strip to the south of the Collier homestead. According to Gilmore's testimony during the bench trial, Mr. Holder told him that the 1972 purchase included all the land up to a then-existing fence that once enclosed the property where Mr. Holder lived. The Colliers seek to defeat Gilmore's adverse-possession claim and use the disputed area as a goat pasture.
Gilmore said at trial that, in 1980, he had leveled the field up to the fence line to facilitate rice farming. The fence was eventually removed; but according to Gilmore, since 1980, the land he had leveled that abutted the fence has remained significantly lower in elevation than the land inside the prior enclosed area. The prior fence-line/rice-levee intersection is the boundary line that Gilmore claimed in this case. The Colliers maintain that the description in their deed controls and that the boundary line should conform to the deeds, not to the prior neighbors' (Holder and Gilmore) understanding of where the boundary line is.
Here is the most important colloquy from Gilmore's testimony during the bench trial:
DEFENSE COUNSEL : ... And you said that at that time there was a fence line [around the two acres] that the Holders put up and-or there was a fence there, is that correct?
GILMORE : Yes.
DEFENSE COUNSEL : And you had a conversation with Mr. Holder about that: is that right?
GILMORE : When I bought the place, Mr. Holder, he said that now "Gilmore," he said, "what you are buying , this right here that's under fence don't go with what you are buying ," He said, "That goes with the house and the yard." And I said: "Mr. Holder, just farm up to where y'all have always farmed?" And he said, "That's correct." ... So that's what I did.
DEFENSE COUNSEL : So is it fair to say that regardless of where the survey lines were, you had permission from Mr. Holder to do that?
GILMORE : I did.
DEFENSE COUNSEL : Did he ever put it in writing or anything like that?
GILMORE : No.
DEFENSE COUNSEL : Just a conversation between the two of you?
GILMORE : Yes, sir.
DEFENSE COUNSEL : And this whole time, you believed that that was your property that you were farming: is that correct?
GILMORE : That was my understanding.
DEFENSE COUNSEL : Okay. So it wasn't your intention to take that property from anybody?
GILMORE : Didn't know there was any conflict there.
DEFENSE COUNSEL : Okay. So it wasn't a-you didn't have a hostile intent to take that property?
GILMORE : No. No.
There was no objection to Gilmore's reciting what Holder had said. And we reiterate that the parties stipulated during the bench trial, and the circuit accepted as fact, that an additional five witnesses would have agreed with the essentials of Gilmore's testimony.
The Colliers called no witnesses during their case-in-chief, so the case was submitted to the court for decision after Gilmore had presented his side. The circuit court took the case under advisement and, in due course, entered an order quieting title to the disputed property in Garland Gilmore and his sister, Lesha Prater. Here is some of the court's order granting Gilmore and Prater the relief they requested:
Both parties acquired their respective titles from a common predecessor, Holder. At the time of Plaintiffs' purchase, Holder reserved ownership of the property inside then-existing fence. This finding is supported not only by Gilmore's testimony of statements made at the time of the transaction, but also by the subsequent acts of Gilmore, Holder, and Holder's successors in interest for a period of 40 years. During that time, Gilmore actively farmed the disputed ground each year with all the associated activities of planting, cultivating, and harvesting of crops and general maintenance of the land. Additionally, he levelled the land up to the fence line, creating visible evidence of the fence's location that survived the later removal of the old fence.
....
The evidence clearly established that the parties to the original conveyance (Gilmore and Holder) intended the fence to be the boundary line. Their subsequent actions complied with their mutual establishment of the line, even if the land description did not.
....
[The Gilmores] have met their burden of proof and have established their title to the disputed property by adverse possession..... Plaintiffs' motion to amend the pleadings to conform to the proof is granted.
....
However, because the Plaintiffs have met the burden of proof as to their adverse possession claim, the Court makes no dispositive findings on the alternative theories.
II.
The Colliers appealed the October 4 judgment and urge two points: the Gilmores failed to sufficiently establish their adverse-possession claim; and the circuit court erred when it allowed the Gilmores to amend their complaint at trial to add additional claims for relief (boundary by acquiescence and boundary by estoppel).
The adverse-possession claim. Adverse possession is governed by Arkansas common law and statutes. Horton v. Taylor , 2012 Ark. App. 469, 422 S.W.3d 202 ; Ark. Code Ann. §§ 18-11-101 to -106 (Repl. 2015). To prove the common-law elements of adverse possession, a claimant must show that he or she has possessed the disputed property continuously for seven years and that the possession has been "actual, open, notorious, continuous, hostile, and exclusive[;] and it must be accompanied with an intent to hold against the true owner." Thompson v. Fischer , 364 Ark. 380, 384, 220 S.W.3d 622, 625 (2005). Again, only the shape-shifting "intent" element in the common law is at issue.
There is support in some aging caselaw for the position that a possessor's subjective state of mind matters when trying to establish whether a possession was hostile. See, e.g. , Ogle v. Hodge , 217 Ark. 913, 916, 234 S.W.2d 24, 25 (1950) (holding that if the possession is up to a fixed boundary under a mistake as to the true line and the intention is to hold only to the true line, the possession is not hostile and will not ripen into title); Murdock v. Stillman , 72 Ark. 498, 82 S.W. 834 (1904) (same); Barclay v. Tussey , 259 Ark. 238, 241, 532 S.W.2d 193, 195 (1976) ("[T]he doctrine of adverse possession is intended to protect one who honestly enters into possession of land in the belief that the land is his own.") (emphasis added).
There is also support in Arkansas cases (some older, some newer) that a possessor's state of mind does not matter. In other words, the most important evidentiary point regarding the intent element of an adverse-possession claim is the possessor's actual conduct. See, e.g. , Dickson v. Young , 79 Ark. App. 241, 245, 85 S.W.3d 924, 926 (2002) (stating it is the "claimant's objective conduct from which his subjective intent to claim the land that he is possessing is derived that is determinative").
Despite some play in the legal joints, the caselaw has been trending toward the (majority) view that the "hostility" element should be determined by behaviors and not primarily by inquiring into a claimant's subjective intent. We will apply the objective standard in this case.
The Colliers argue that sufficient evidence does not support an adverse possession. The Colliers specifically argue that Gilmore's more than forty-year farming of the property was not a hostile use but a permissive use. Permissive use of property can defeat an adverse-possession claim. Compare Thompson v. Fischer , 364 Ark. 380, 220 S.W.3d 622 (2005) (offer to purchase or permissive use defeats hostile intent necessary for adverse-possession claim), with Baughman v. Foresee , 211 Ark. 149, 152, 199 S.W.2d 596, 597 (1947) (offer to purchase or permissive use does not divest a title that has already vested by adverse possession). Stated more colorfully, " 'Hostility' is the very marrow of adverse possession[.] To say that possession is hostile should mean nothing more than that it is without permission of the one legally empowered to give permission, usually the owner." Stoebuck & Whitman, The Law of Property , supra , at 856. The Colliers argue that the circuit court's finding of adverse possession was clearly erroneous because Gilmore lacked the requisite hostile "intent."
Having applied the majority view that a claimant's conduct can establish the hostility element of adverse possession, our de novo review of the record does not persuade us that the circuit court clearly erred by rejecting a "permissive use" theory of the case and concluding that Gilmore sufficiently established his adverse-possession claim. Lafferty v. Everett , 2014 Ark. App. 332, 436 S.W.3d 479 (standard of review). The circuit court could well have rejected the Colliers' position that Gilmore's cross-examination was an admission that he used the disputed area with Holder's permission and in subordination to Holder's rights. The circuit court could have heard the cross-examination testimony as being, essentially, a recollection of two landowners (Holder and Gilmore) orally confirming, decades ago, what they believed the deed conveyed. Though Holder and Gilmore went out of step with the deed's land description, they did so under a mutual mistake about the actual Holder/Gilmore boundary line that the deed had set. This view squares with Gilmore's testimony that he saw no conflict with Holder and had no "hostile intent to take the property."
Gilmore's act of farming the disputed tract for decades is enough to establish an intent to hold against, and not in subordination to, the true owner's rights. E.g. , Boyd v. Roberts , 98 Ark. App. 385, 391, 255 S.W.3d 895, 899 (2007) (cultivating and planting Bermuda grass sufficient notice of a hostile claim to the property). That Gilmore may have believed that he had farmed up to the "true" property line that the Holder/Gilmore deed established is increasingly unimportant under modern adverse-possession law because Gilmore was, in fact, possessing his neighbor's land. And the possession was "hostile" because it was to an extent greater than the deed anticipated; and his conduct was not subordinate to Holder's property interests or done with Holder's permission. Although the disputed tract was not physically enclosed (by a fence for example), a point the Colliers make, this fact is not pivotal. By all accounts, Gilmore had farmed the property for decades, and the disputed boundary line was a cultivation line that has been clearly identifiable for decades. Compare Hedger Bros. Cement & Materials, Inc. v. Stump , 69 Ark. App. 219, 223, 10 S.W.3d 926, 929 (2000) (invisible line between levees not a clear enough boundary line), with Clark v. Casebier , 92 Ark. App. 472, 479, 215 S.W.3d 684, 688 (2005) (irrigation ditch established the boundary line). Gilmore's adverse possession legally altered the boundary line between the Colliers' property and Gilmore's. Because the circuit court decided the case in accord with the evidence and the law of adverse possession, we affirm its decision that Gilmore proved his claim.
The amended-complaint issue. The Colliers' second point on appeal-the circuit court abused its discretion when it allowed Gilmore to amend his complaint to include additional theories (boundary by acquiescence or estoppel)-is but half complete. The circuit court expressly stated, "[B]ecause the [Colliers] have met the burden of proof as to their adverse possession claim, the Court makes no dispositive findings on the alternative theories." Because the court decided the case solely on an adverse-possession claim, the amendment was not used to make any merit-based decisions against the Colliers. In other words, the Colliers' legal rights were not adversely affected by the ruling. We respectfully decline to give the equivalent of an advisory opinion on the Colliers' second point.
III.
The circuit court's judgment is affirmed.
Affirmed.
Abramson and Brown, JJ., agree.
No party has fully explained the chain of title and who holds what interest. Lesha Prater is Garland Gilmore's sister. In 1972, Lyn Holder and Myrtle Holder conveyed a parcel of land (approximately 38 acres) to four co-owners/two married couples: H.G. Gilmore and Verna H. Gilmore and Garland Gilmore and Lurline Gilmore. In 2012, Adam Lassiter, Jessica Lassiter, and Amy Lassiter-who appear to be heirs or assigns of Lyn and Myrtle Holder-conveyed approximately two acres containing the original homeplace to the Colliers as husband and wife.
In 1995, the General Assembly added the requirement that the claimant prove color of title and payment of taxes on the subject property or contiguous property for seven years. Ark. Code Ann. § 18-11-106. If a claimant's right to the disputed property vested before 1995, however, he or she need not comply with the 1995 statutory change. Sutton v. Gardner , 2011 Ark. App. 737, 387 S.W.3d 185. These and other statutory changes are not at issue.
Is hostility to be determined objectively, without inquiring into the subjective intent of the claimant? Or is her subjective intent an issue? And if the latter, does it matter whether she had mistaken intent or wrongful intent, and if so, may her claim be denied? States differ in their answers to all of these questions.
The majority view and the one favored by secondary authority is that subjective intent is not relevant and that all that matters is the objective intent of the claimant, as evidenced by her actions. The majority approach is the easiest for courts to handle. The claimant simply offers into evidence her acts, proves that they are the same type of acts a true owner would perform, and as long as there was no permission on the part of the owner, adverse possession is proved. It does not matter whether the claimant is an angel or a devil-the acts and the lack of permission are the keys.
Lynn Foster & J. Cliff McKinney II, Adverse Possession and Boundary by Acquiescence in Arkansas: Some Suggestions for Reform , 33 U. Ark. Little Rock L. Rev. 199, 208 (2011) (footnotes omitted).
The modern position of American courts is that possession of land under the mistaken belief of legal ownership usually satisfies the hostility requirements, as long as the possessor does not hold in subordination to another and has no conscious doubt as to his or her rights.... The widely accepted view is that an adverse claim, otherwise valid, is not defeated by an initial mistake as to where the claimant's property ends and the neighbor's property begins. Thus, where a landowner-claimant holds actual possession of a disputed strip of land under a claim of right openly, exclusively, and continuously for the statutory period, mistakenly believing that he or she is holding to the true line, the landowner-claimant acquires the neighbor's title up to that line, and it is immaterial what the landowner-claimant might have claimed in the absence of a mistake. While an act such as fencing is one of the strongest indications of adverse possession, there is generally no per se rule requiring a boundary line to be marked by a physical barrier. Merely because property is not physically enclosed does not render the line incapable of location and description.
Richard R. Powell, 16 Powell on Real Property § 91.05 (Michael Allan Wolf ed., Lexis Nexis Matthew Bender) (footnotes omitted). | [
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In the order resulting from that permanency-planning hearing, the trial court found the following:
As to Ryan Bryant, he has again shown himself to be untrustworthy. The Court has made specific findings in the past that Mr. Bryant is not credible. The Court again today makes a specific finding that Mr. Ryan Bryant is not a credible individual and the Court can put very little weight in Mr. Bryant's testimony. This is a serious, substantial issue. The Court cannot trust what Mr. Bryant says.
To cite a specific example, Mr. Bryant was not honest about his living arrangements. The Court referred to its notes from February 21, 2017, and Mr. Bryant today directly contradicted the testimony given then. This is a material misrepresentation that involves several major issues concerning his house and others living in the home as well as the true nature of his relationship with those persons in the home and where he wants to have the child [Z.B.] placed.
He previously testified that the house he was in was leased to him, in his name, and his girlfriend was living with him in his home. The home study of that home, accepted into evidence today, revealed that the home was not leased to him but rather to the woman he claimed was his girlfriend, who is now no longer his girlfriend. Further, she said it was her intention to have him move from the home.
It is also notable that all of this information was gathered from her, not him; he was not forthcoming about any of these issues. Apparently, he would have allowed his misrepresentations to stand.
As it turns out, he is now staying with someone else, has placed his belongings in storage, and says he is moving into a new apartment tomorrow, which will necessitate the third home study the Department will have to undertake on Mr. Bryant's behalf.
The Court cannot place a child in a home if material issues about the home are being lied about. When confronted with his previous contradictory testimony, Mr. Bryant continued to lie. This is only the most recent example of Mr. Bryant's lack of credibility.
Further, Mr. Bryant admitted today that the juvenile [Z.B.], while in his care, did see Annette Hughes, despite the Court's clear order of No Contact. Mr. Bryant claims this was inadvertent and was merely happenstance. The Court does not believe Mr. Bryant's assertion that this was just a coincidence.
Mr. Bryant cannot be believed, as the Court continues to find. Mr. Bryant has shown he cannot be trusted. Ms. Hughes is a toxic individual. Any contact with her carries a high likelihood of negative consequences and the Court could not have been any more clear at the termination of parental rights hearing that No Contact with Ms. Hughes should be allowed by anyone.
Yet, here we are and the Court is asked to accept that contact occurred but should be excused and overlooked as mere chance. The Court can't overlook it and certainly won't excuse it. This contact occurred on Mr. Bryant's watch and represents another major issue, this one going directly to the child's immediate well-being. Mr. Bryant has allowed the toxic Ms. Hughes access to [Z.B.] and that's a fact and the Court believes he would allow it again.
This, combined with his lack of trustworthiness, places him in an almost insurmountable position to regain his child; certainly, not in any reasonable period of time. This case is already two years old.
The Court is changing [Z.B.'s] goal to adoption and is setting the next hearing as a termination of parental rights hearing for Mr. Bryant. Termination is not a foregone conclusion and the Department shall continue to offer services to Mr. Bryant in the interim. He may have supervised visits at DHS and the Department shall conduct a home study on the new apartment once Mr. Bryant has moved in and stated his intent to reside there for the foreseeable future.
DHS filed a third petition to terminate parental rights on July 11, 2017. As to appellant, DHS alleged several grounds for termination under Arkansas Code Annotated section 9-27-341(b)(3)(B) (Supp. 2017), including the failure-to-remedy, subsequent-factors, and aggravated-circumstances grounds, and a termination hearing was held on September 15, 2017.
At the termination hearing, Jessica Warren, an adoption specialist, testified that it was her opinion that Z.B. was adoptable and that it would be in Z.B.'s best interest to be adopted.
Danielle Kimbrough testified that she supervised the family-services worker who was currently assigned to the case, Alexandria Forte, and Forte's predecessor, Kawachii Williams. Kimbrough explained that Bryant had exercised visitation throughout the case but missed some visits due to work schedules.
Alexandria Forte testified regarding the case history and explained that she thought it was in Z.B.'s best interest to gain some type of stability and permanency as the case had been open for over two years. She explained that there were safety concerns with placing Z.B. in appellant's care as she did not know if appellant would continue to allow Z.B. to see Hughes if that was done. She noted that the court had already found Hughes to be toxic and an unfit parent. DHS was unable to conduct a trial placement during the pendency of the case due to the concern about the previous home study and then the allegations, which were later found to be true, that appellant was allowing Z.B. to see Hughes during unsupervised visitations. Therefore, Forte opined, there had been little progress made. On cross-examination, Forte admitted that appellant's most recent home study was favorable and that appellant was employed. Forte explained that there were three bedrooms in the new home and that appellant had told her only one other person was living in the home. However, she had not seen the lease.
Appellant testified that he had been living in his most recent home for approximately three months and that he has other children. Appellant admitted that another child, whom he thought was his son, had been adjudicated dependent-neglected after the child was removed from his mother's care. Appellant explained that he was not present at the time of the injury, but he was told that the child had been burned in a bathtub. After DNA testing, it was discovered that appellant is not that child's biological father.
Appellant testified that he was employed as a restaurant manager and that he was currently leasing his home. He denied that the encounter between Z.B. and Hughes was planned and stated that the encounter lasted no more than a couple of seconds.
After the hearing, the trial court terminated appellant's parental rights. In the termination order, the trial court found by clear and convincing evidence that it was in the child's best interest to terminate appellant's parental rights. It stated that it considered the likelihood that the child would be adopted and the potential harm to the child's health and safety by returning the child to appellant. As to appellant, the trial court found that DHS had proved by clear and convincing evidence the three grounds alleged in the petition for termination of parental rights, including the failure-to-remedy, subsequent-factors, and aggravated-circumstances grounds under Arkansas Code Annotated section 9-27-341(b)(3)(B). After detailing the case history, the trial court additionally made the following pertinent findings:
7. The Court finds the first ground pled in the Petition to have been proven by clear and convincing evidence against Mr. Bryant. The child was removed from the mother's custody on May 20, 2015; the child had never been in Mr. Bryant's custody and was not at the time of removal. The length of time that has passed since that removal is now just over twenty-eight (28) months, a period of time clearly exceeding the twelve month statutory requirement. The child has remained out of the non-custodial, Mr. Bryant's, home for a period exceeding twelve months.
Mr. Bryant, as the non-custodial parent, has not been rehabilitated nor have the conditions in the home been corrected despite the Department's meaningful efforts. The Department did make meaningful efforts and the ordered services were provided, although a delay as to parent-child specific counseling did occur; however, the Court allowed Mr. Bryant additional time and the Department did provide the counseling in question. Nevertheless, Mr. Bryant has not satisfied the Court as to his fitness and ability to parent and willingness to protect the child. This is addressed multiple times throughout this order and the Court won't belabor the point here. He has not been and is not a fit and appropriate caregiver and he has not remedied this lack of fitness and impropriety during the time allowed under the statute. More than ample time was allowed. The statute contemplates one year with a three-month extension for a total of fifteen months; this case has been open almost double that at twenty-eight (28) months.
The Court finds the second ground pled to have been proven by clear and convincing evidence against Mr. Bryant for the extensive reasons cited above. Subsequent factors arose that demonstrate, despite a meaningful offer of appropriate services, an incapacity or indifference to remedy the reasons preventing placement of the juvenile with him in his custody.
The Court explained, at some length, that this case, in the final analysis, is not about a home study or counseling or even visitation. The services ordered were provided and completed, though delays did occur. To the extent that the delays were caused by the Department of Human Services, particularly the parent-child counseling last spring, the Court allowed Mr. Bryant additional time to comply and demonstrate his fitness to the court. Regarding [Z.B.], the Court did not terminate Mr. Bryant's parental rights last February. Mr. Bryant was afforded additional time to counter service delays caused by the Department and the services were completed. This additional time also revealed several material deceptions attempted by Mr. Bryant.
These ongoing credibility concerns trouble the Court greatly today and have throughout these proceedings. The Court has made specific findings regarding Mr. Bryant's credibility going back as far as the Adjudication on July 14, 2015, over two years ago, and has made additional rulings to that effect throughout these proceedings.
The passage of time has not allayed those concerns. Rather, those concerns have grown, including again today and the Court is again making a specific finding that Mr. Bryant is not credible. He attempted today to mislead the Court about an already settled matter, his housing and relationship status, from the previous hearing. This represents a lie on top of a lie. Mr. Bryant cannot be trusted to tell the truth to the Court and this has been proven repeatedly and likewise, he cannot be trusted to safely and responsibly parent and most importantly, protect the child.
The third ground pled has also been proven by clear and convincing evidence and is applicable to Mr. Bryant, per the Court's fact-finding and reasoning above. Such aggravated circumstances are present today and have been most recently in this matter. Additionally, the Court previously made an aggravated circumstances finding against Mr. Bryant once before, at the July 24, 2015, Adjudication in this matter. The Court finds it is unlikely that further services to this father will result in successful reunification as measured from the child's perspective and consistent with the child's developmental needs.
As noted above, Mr. Bryant is not trustworthy and this presents a fatal flaw to the Court. His lack of credibility affects his fitness and it follows, by that analysis, he is unfit and well over two years of working with Mr. Bryant and services to Mr. Bryant have not resulted in reunification and it is not likely to ever occur.
Looking back at the Court's ruling from February 21, 2017, the Court allowed unsupervised visits and cleared the way for placement of [Z.B.] with Mr. Bryant. Unfortunately, serious problems emerged almost immediately and the unsupervised visits had to be terminated, for safety reasons, and the placement in Mr. Bryant's home never occurred, because serious misrepresentations or lies about that home came to light. The Court provided Mr. Bryant the opportunity to have [Z.B.] placed in Mr. Bryant's home. This failure to achieve (re)unification lies with Mr. Bryant. There are no compelling reasons to continue reunification services for Mr. Bryant.
8. The Court finds by clear and convincing evidence that it is in the best interest of the juvenile to terminate parental rights. [Z.B.] is an adoptable child. In making this finding, the court specifically considered the likelihood that the juvenile will be adopted if the termination petition is granted, and cites specifically the testimony of Jessica Warren, Department of Human Services Adoption Specialist, who stated there are numerous families available that are a data match for the juvenile. It is highly likely this child will be adopted. There is greater stability and permanency for the juvenile to terminate parental rights and proceed toward adoption.
The Court finds there is potential harm to the health and safety of the juvenile that would be caused by placing the juvenile in the custody of the father. The Court has no doubt that Mr. Bryant would turn right around and allow the toxic, biological mother, Annette Hughes, access to the child. This is not mere conjecture or speculation on the Court's part; this has already happened, as the Court addressed extensively above in its May 30, 2017, Permanency Planning Order. Mr. Bryant knowingly defied a clear court order regarding the child, and such defiance places the child in immediate danger.
This flaunting of a court order that was made for the child's safety, in combination with Mr. Bryant's past and ongoing credibility issues with this court add up to an overall and utter lack of fitness to parent this child. The Court does not believe Mr. Bryant will protect this child. The Court has ample reason to believe he will NOT protect this child.
Additionally, there have been housing and relationship stability issues, both of which Mr. Bryant attempted to mislead the Court about. All told, Mr. Bryant poses ongoing and present risks to the child, if the child were to be placed to him.
9. As such, the Court grants the Petition of the Department of Human Services and hereby terminates all parental rights between Ryan Bryant and the juvenile in this matter: [Z.B.]
This appeal followed.
II. Standard of Review
A trial court's order terminating parental rights must be based upon findings proven by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Posey v. Ark. Dep't of Health & Human Servs. , 370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews termination-of-parental-rights cases de novo but will not reverse the trial court's ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Id.
In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). However, only one ground must be proved to support termination. Reid v. Ark. Dep't of Human Servs. , 2011 Ark. 187, 380 S.W.3d 918.
III. Statutory Grounds
The trial court granted the termination petition based on three grounds: (1) the failure-to-remedy ground under Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(b) ; (2) the subsequent-factors ground under Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) ; and (3) the aggravated-circumstances ground under Arkansas Code Annotated section 9-27-341(b)(3)(B)(ix)(a) . Arkansas Code Annotated section 9-27-341(b)(3)(B) defines these grounds as follows:
(i)(b) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home of the noncustodial parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that prevented the child from safely being placed in the parent's home, the conditions have not been remedied by the parent.
....
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent.
....
(ix)(a) The parent is found by a court of competent jurisdiction, including the circuit court juvenile division, to:
....
(3)(A) Have subjected any juvenile to aggravated circumstances.
(B) "Aggravated circumstances" means:
(i) A juvenile has been abandoned, chronically abused, subjected to extreme or repeated cruelty, sexually abused, or a determination has been or is made by a judge that there is little likelihood that services to the family will result in successful reunification[.]
Appellant argues that the trial court erred in terminating his parental rights because there was insufficient evidence to support the grounds asserted in the petition to terminate parental rights. We cannot agree. Regarding the aggravated-circumstances ground, appellant relies on Guthrey v. Arkansas Department of Human Services , 2017 Ark. App. 19, 510 S.W.3d 793, in which we held that a lack of credibility, standing alone, is not a condition warranting removal of one's child. Appellant argues that he completed the services that were ordered and that the recent home study discussed at the termination hearing had been approved. Therefore, he argues that the trial court's findings constitute reversible error under Guthrey . However, this case is distinguishable from Guthrey . The trial court's credibility determinations there did not relate to the testimony or evidence regarding a material fact in order to support the trial court's findings. Id. Instead, the trial court erroneously substituted its credibility determination for substantive evidence sufficient to support its finding, which we held was reversible error. Id. ; see also Ewasiuk v. Ark. Dep't of Human Services , 2018 Ark. App. 59, 540 S.W.3d 318.
Here, the trial court relied on the testimony of multiple individuals and did not hinge its determination solely on a finding that appellant was not credible. Despite the trial court's no-contact order and two years of services provided by DHS, it was revealed at the final permanency-planning hearing that appellant had allowed Z.B. to have contact with his biological mother. Z.B. testified regarding this contact, and Z.B.'s foster mother testified that Z.B. was not only upset after the contact but was also instructed by appellant not to tell anyone about the contact. Although appellant described this contact as "inadvertent," the trial court was not required to believe this self-serving testimony. Ewasiuk, supra. Ultimately, appellant is asking this court to reweigh the evidence in his favor, which we decline to do. Id. The trial court specifically considered the evidence before it, including any compliance, and found that the evidence supported the statutory grounds for termination. On this record, we cannot hold that the trial court clearly erred in its aggravated-circumstances finding. Because only one ground is necessary to terminate appellant's parental rights, it is unnecessary for us to address appellant's remaining arguments regarding the other statutory grounds found by the trial court.
IV. Best Interest
Appellant lastly argues on appeal that there was insufficient evidence that termination was in the best interest of his child. He does not challenge that Z.B. would be adoptable. Instead, he alleges that the evidence failed to establish that he posed such a potential harm that would warrant terminating his parental rights. The trial court found that the potential-harm factor was satisfied because it had no doubt that appellant would again allow Z.B.'s "toxic" biological mother access to Z.B. Appellant argues that the court's finding is simply conjecture and speculative. We disagree.
In assessing the potential-harm factor, the court is not required to find that actual harm would ensue if the child were returned to the parent or to affirmatively identify a potential harm. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. The potential-harm analysis is to be conducted in broad terms. Id. The intent of our termination statute is to provide permanency in a minor child's life in circumstances where returning the child to the family home is contrary to the child's health, safety, or welfare, and where the evidence demonstrates the return cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Miller v. Ark. Dep't of Human Servs. , 2017 Ark. App. 396, 525 S.W.3d 48. The child's need for permanency and stability may override the parent's request for additional time to improve the parent's circumstances. Id. The issue is whether the parent has become a stable, safe parent able to care for the child. Id . Here, appellant had already allowed Z.B. to have contact with Hughes despite the trial court's clear no-contact order. Past actions of a parent over a meaningful period of time are good indicators of what the future may hold, and even full compliance with the case plan is not determinative. Id. ; Sharks, supra. Thus, appellant's behaviors over the course of the entire case as outlined above do not show enough stability to render the trial court's finding that appellant posed a risk of potential harm to Z.B. if Z.B. was returned to his custody clearly erroneous.
Affirmed.
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LARRY D. VAUGHT, Judge
Kimberly Bentley appeals the order entered by the Sebastian County Circuit Court terminating her parental rights to her daughter, C.J. (born July 3, 2014). On appeal, Bentley argues that the circuit court clearly erred in finding that the Arkansas Department of Human Services (DHS) proved grounds to support the termination order and that termination was in C.J.'s best interest. We affirm.
On September 8, 2014, DHS filed a petition for emergency custody and dependency-neglect, alleging that on September 5, 2014, it had exercised a seventy-two-hour hold over then two-month-old C.J. The affidavit attached to the petition alleged that on September 5th, C.J. had been taken to the emergency room where it was discovered that she had injuries consistent with shaken-baby syndrome along with a healing clavicle fracture. The affidavit further alleged that C.J. had been in the care of Bentley and her live-in boyfriend, Jacob Jeffrey; that Bentley had reported that C.J. had choked on her formula, went limp, and stopped breathing; and that the history reported was not consistent with C.J.'s injuries. An ex parte order for emergency custody was entered on September 8, 2014, and a probable-cause order was entered on October 2, 2014.
An adjudication hearing was held on October 30, 2014, during which Dr. Karen Farst of Arkansas Children's Hospital testified. Dr. Farst stated that C.J. suffered from bilateral subdural hematomas and severe retinal hemorrhaging that were nonaccidental and were caused by violent shaking. Dr. Farst testified that C.J. also suffered from broken bones in her legs and collarbone and that at least one of the leg fractures was caused by abuse. Dr. Farst stated that the abuse endured by C.J. placed her life in danger. Based on Dr. Farst's testimony, the circuit court found that C.J. was dependent-neglected due to the substantial risk of harm as a result of physical abuse. The court ordered Bentley to comply with the case plan, which included: demonstrating improved parenting skills; complying with any counseling recommendations by her psychological evaluation; complying with any treatment recommended by her drug-and-alcohol assessment; submitting to random drug screens, hair-follicle testing, and alcohol swabs; attending and completing a "parenting without violence" class; obtaining and maintaining stable, safe, and appropriate housing; obtaining and maintaining stable employment with an income to support herself and C.J.; obtaining and maintaining a stable form of transportation; visiting regularly and appropriately; and maintaining steady contact with DHS. The goal of the case was reunification.
After a May 14, 2015 review hearing, the circuit court entered an August 27, 2015 review order, finding that Bentley had "somewhat complied" with the case plan, stating that she had completed DHS parenting classes; submitted to a drug-and-alcohol assessment but had not begun the recommended outpatient treatment; tested positive for amphetamine/methamphetamine on May 6, 2015; submitted to a psychological evaluation, but because of her high level of defensiveness and her significantly elevated scores on the "lie scales," it was invalidated and could not be interpreted for diagnosis or recommendation; begun "parenting without violence" classes, but her attendance and participation were not good; and visited C.J. regularly, but the visits were not appropriate. The goal of the case was reunification with the concurrent goal of termination of parental rights and adoption.
In a November 20, 2015 permanency-planning order, the circuit court found that Bentley had maintained housing with her mother, was employed, had obtained her driver's license, relied on family members for transportation, completed additional parenting classes, visited regularly, and was attending outpatient treatment. DHS was ordered to refer Bentley for a second psychological evaluation. The goal remained reunification with a concurrent goal of termination and adoption.
On May 3, 2016, DHS filed a petition for termination of parental rights against Bentley, alleging three grounds: (1) failure to remedy, Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) (Supp. 2017); (2) subsequent factors, section 9-27-341(b)(3)(B)(vii)(a) ; and (3) aggravated circumstances, section 341(b)(3)(B)(ix)(a)(3)(A) , (B)(i). DHS further alleged that termination of parental rights was in C.J.'s best interest.
A fifteen-month-review and permanency-planning order was entered on November 15, 2016, wherein the circuit court found that C.J. had been in DHS custody for twenty-five of her twenty-seven months of life and that Bentley had "checked the boxes" regarding her compliance with the case plan and made significant and measurable progress, although the court specifically noted that it was not making a finding as to whether she had satisfactorily completed services.
Six days of termination hearings were held on November 18, 2016; November 21-22, 2016; December 2, 2016; December 8, 2016; and December 13, 2016. Seventeen witnesses testified. At the conclusion of the hearings, the circuit court orally granted DHS's petition to terminate Bentley's parental rights to C.J. In an order entered on March 1, 2017, the court found that DHS had met its burden of proof by clear and convincing evidence as to all three grounds pled in the termination petition and that termination was in the best interest of C.J. Bentley filed a timely notice of appeal.
Termination-of-parental-rights cases are reviewed de novo. Pine v. Ark. Dep't of Human Servs. , 2010 Ark. App. 781, at 9, 379 S.W.3d 703, 708. Grounds for termination of parental rights must be proved by clear and convincing evidence, which is that degree of proof that will produce in the finder of fact a firm conviction of the allegation sought to be established. Id. , 379 S.W.3d at 708. The appellate inquiry is whether the circuit court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. Id. , 379 S.W.3d at 708. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. , 379 S.W.3d at 708. In resolving the clearly erroneous question, we give due regard to the opportunity of the circuit court to judge the credibility of witnesses. Id. , 379 S.W.3d at 708. Termination of parental rights is an extreme remedy and in derogation of a parent's natural rights; however, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Id. , 379 S.W.3d at 708. As with all issues addressing child placement, the appellate court affords heightened deference to the circuit court's superior position to observe the parties personally and weigh credibility. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 215, 40 S.W.3d 286, 292-93 (2001).
In order to terminate parental rights, a circuit court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration the (1) likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Pine , 2010 Ark. App. 781, at 9-10, 379 S.W.3d at 708-09 (citing Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii) (Repl. 2009) ). Additionally, the circuit court must also find by clear and convincing evidence that one or more statutory grounds for termination exists. Id. at 10, 379 S.W.3d at 709 (citing Ark. Code Ann. § 9-27-341(b)(3)(B) ). Proof of only one statutory ground is sufficient to terminate parental rights. Id. , 379 S.W.3d at 709.
In this case, the circuit court found that termination of parental rights was supported by three statutory grounds: failure to remedy, subsequent factors, and aggravated circumstances. On appeal, Bentley challenges all three grounds supporting termination by broadly stating that she "remedied anything and everything that needed remedying resulting in [her] being a safe and fit parent." She also argues that the circuit court's credibility findings were insufficient to support its grounds findings.
This case was opened because C.J. was the victim of severe physical abuse. On September 3, 2014, C.J. (just two months old) was seen by her pediatrician for a well-baby checkup; no concerns or diagnoses concerning C.J.'s health were noted at this visit. The following day, September 4, 2014, Bentley and Jeffrey brought C.J. to the emergency room with complaints that she was choking on milk. Dr. Josh Wilkinson testified that during the evaluation of C.J. at the emergency room extensive retinal hemorrhages and a broken clavicle were found and that he suspected that C.J. had been physically abused. C.J. was hospitalized, and when she began experiencing seizures, she was transported to Arkansas Children's Hospital.
Dr. Farst treated C.J. at Arkansas Children's Hospital and testified that C.J. suffered significant hemorrhaging in the back of her eyes and bleeding on the surface of her brain caused by a recent event of shaken-baby syndrome. Dr. Farst also testified that C.J. suffered orthopedic injuries that included a broken clavicle, two tibia fractures, and one fibula fracture. The clavicle fracture was at least two weeks old, and Dr. Farst confirmed that there was no medical record showing that C.J. had suffered a collar-bone injury at birth or in follow-up visits. Dr. Farst further stated that the tibia and fibula fractures were more recent injuries and could have occurred at the same time as the head injuries. Dr. Farst concluded that these injuries were caused by physical abuse. Dr. Farst further testified that either C.J.'s caregiver had knowledge of how C.J.'s injuries were caused or the caregiver was in a home with other people who caused the injuries, with or without the caregiver's knowledge. In either situation, according to Dr. Farst, returning C.J. to that home would put her at risk for further and potentially more severe injuries.
At the termination hearings, three witnesses testified that Bentley told them that she was feeding C.J. when C.J. started choking and went limp. Bentley subsequently reported that either she or Jeffrey had fallen with C.J. Later, Bentley changed her story again, telling Fort Smith police detective Anthony Rice that she had gone downstairs to smoke, leaving Jeffrey to feed C.J. When she went back upstairs, she found Jeffrey holding C.J., who was not breathing, and Jeffrey said that C.J. had choked on her milk.
Based on these facts, Bentley was either a perpetrator of the physical abuse of C.J., or at a minimum, Jeffrey was the offender, and Bentley failed to protect C.J. Therefore, it was extremely important that Bentley demonstrate to the circuit court that C.J. would be safe if returned to Bentley's custody. To aid in this process, DHS provided Bentley with over two years of services that included referrals to multiple parenting classes, including "parenting without violence" and "nurturing parenting" classes; two drug-and-alcohol assessments; drug testing; drug treatment; two psychological evaluations; and a referral for individual counseling and medication management. The circuit court found that Bentley complied with some of the requirements of the case plan and "checked boxes": she did not have independent housing, but she lived with her mother; she had employment, a driver's license, and transportation; she visited C.J. regularly; she completed two drug-and-alcohol assessments; completed drug treatment; complied with random drug screens; completed parenting classes; and attended two psychological evaluations. The court further found that she "did not meaningfully participate in [services] or benefit from them." Therefore, the circuit court found aggravated circumstances because there was little likelihood that further services to Bentley would result in successful reunification with C.J. We hold that the circuit court did not clearly err in reaching this conclusion based on the following evidence.
Bentley was referred to an eighteen-week "parenting without violence" class. The teacher, Jackie Hamilton, testified that Bentley's attendance was erratic and that it took her thirty-six weeks to complete the course. Hamilton further stated that during the course, Bentley was defiant, resistant, argumentative, and threatened to sue Hamilton for HIPAA violations. According to Hamilton, Bentley did not absorb or internalize the material. Hamilton further testified that Bentley did not identify any deficits of her own, showed no awareness of her involvement in the case, and exhibited credibility issues throughout the classes. Hamilton testified that Bentley never assumed any responsibility for C.J.'s injuries or showed empathy toward C.J.
Because Bentley did not meaningfully benefit from the "parenting without violence" class, the circuit court ordered her to attend the "nurturing parenting" class. DHS had to make three referrals for Bentley-November 2015, February 2016, and October 2016-because she failed to attend the class and the first two referrals expired. Bentley did not begin those classes until October 24, 2016.
DHS caseworker Robbie McKay testified that Bentley attended a drug-and-alcohol assessment, but she lied to the examiner when she reported that she had never used illegal drugs. Bentley admitted at the termination hearing that she lied to the examiner and that she had used methamphetamine. McKay ordered a second drug-and-alcohol assessment, and Bentley was recommended for drug treatment, which she attended. However, McKay testified that Bentley did not rehabilitate herself with regard to her substance-abuse issue. Bentley, who had told McKay that she was addicted to hydrocodone, testified at the hearing that she took hydrocodone several times during the case and did not provide proof that she had a prescription for these narcotics. Bentley further testified that she started using methamphetamine four to five times a week after C.J. was taken from her custody. She tested positive for methamphetamine on May 6, 2015. Bentley also tested positive for alcohol during the case.
McKay also testified that the results of Bentley's first psychological evaluation were invalidated because she was dishonest during testing. Bentley submitted to a second psychological evaluation and was diagnosed with adjustment disorder with anxious mood, unspecified depressive disorder, and personality disorder. It was recommended that Bentley seek, among other things, psychiatric consultation regarding the need for psychopharmacological intervention.
Bentley was referred for this consult, yet she failed to attend, testifying that she did not go because she was pregnant and did not think that she could take medicine. McKay testified that Bentley never said that she was pregnant and could not attend the referral, and McKay said that after Bentley had her baby, she never said that she was ready for the referral. McKay testified that Bentley had not rehabilitated herself with regard to her psychological issues. The circuit court agreed, finding that Bentley's failure to attend the referral for psychopharmacological management was "one of the most serious issues that the mother failed to address in this case."
Evidence showed that after more than two years of services, Bentley's visits with C.J. were not "appropriate." McKay testified that she observed Bentley and C.J. interact at least fifty times and observed entire visitations ten to fifteen times. According to McKay, Bentley aggravated and irritated C.J.; Bentley would put C.J. in timeout when C.J. was less than one year old; when C.J. was upset, Bentley would laugh at C.J.; and Bentley would slap C.J. on the hand for discipline. When McKay asked what Bentley had learned in one of her parenting classes, Bentley's only response was that she learned that it is okay to spank your child in Oklahoma. This was very concerning to McKay because C.J. came into DHS care due to physical abuse, and McKay was not convinced that Bentley did not play a part in harming C.J. McKay further testified that Bentley and C.J. do not have a close bond. McKay said that Bentley showed inappropriate parenting skills during supervised visitation and that she (McKay) had concerns that, if C.J. was returned to Bentley without supervision, C.J. would be at risk of further physical abuse and emotional damage.
McKay also testified that she had issues with Bentley's lack of credibility throughout the case. McKay said that Bentley lied to the drug-and-alcohol-assessment examiner and psychological examiner. Bentley often lied to McKay. Based on Bentley's behavior, McKay stated that-based on her twenty-two years of caseworker experience-she could not think of any additional services that DHS could offer to Bentley that would likely result in reunifying with C.J. within a reasonable period of time.
Donna Morgan, a child therapist, testified that she observed "very minimal" interaction between C.J. and Bentley during visits and that she "did not see much of a bond between C.J. and her mother." Morgan doubted Bentley had the ability to parent so that C.J. could develop appropriately. Morgan opined that continued visits between C.J. and Bentley could be detrimental to C.J. because trying to recover a connection where a child is not trusting of a parent can cause more harm to the child.
Other evidence showed that Bentley did not comprehend or even acknowledge the physical abuse Jeffrey caused to C.J. Bentley regularly visited Jeffrey while he was in jail for abusing C.J. She admitted that when Jeffrey was in jail she talked with him regularly. Bentley admitted at the hearing that she lied to DHS workers when she told them that she was not communicating with Jeffrey when he was in jail. Bentley further testified that she loved Jeffrey and did not believe that he was responsible for C.J.'s injuries until March 2016, when he was sentenced for the abuse.
The circuit court's significant concern over Bentley's complete lack of credibility provides additional support for its finding that there was little likelihood that further services to Bentley would result in successful reunification with C.J. In this case, the circuit court devoted three pages of its termination order to Bentley's many lies and inconsistent behavior. The circuit court concluded its order by finding that Bentley "lacks all credibility" and that "[i]n all of the court's prior legal experience, the court has never seen such dishonesty from a witness ... [t]he court could not trust one statement made by the mother." A few examples of Bentley's dishonesty are discussed above. Bentley admitted at the hearing that she lied to DHS, to the doctors, and to the providers of her services.
Taken together, there is overwhelming evidence in this case to support the circuit court's aggravated-circumstances finding. Bentley's argument that the circuit court clearly erred on this point because the evidence shows that she complied with the case plan and court orders is not well taken. Even when an appellant may have completed some parts of the case plan, compliance with a case plan does not justify reversing a termination case if the appellant continued to make decisions adverse to the child. Chase v. Ark. Dep't of Human Servs. , 86 Ark. App. 237, 241, 184 S.W.3d 453, 455 (2004). What matters is whether Bentley's completion of portions of the case plan achieved the intended result of making her capable of caring for C.J. Wright v. Ark. Dep't of Human Servs. , 83 Ark. App. 1, 7, 115 S.W.3d 332, 335 (2003). The evidence as set forth above establishes that despite over two years of extensive DHS services, Bentley did not benefit from the services or gain sufficient parenting skills to regain custody of C.J.
Moreover, Bentley's argument is essentially asking this court to reweigh the evidence in her favor and to reach a result contrary to that of the circuit court. But under the standard of review, we do not act as a super fact-finder, and it is not reversible error for the circuit court to weigh the evidence differently than how Bentley asks the evidence to be weighed. Allen v. Ark. Dep't of Human Servs. , 2018 Ark. App. 136, at 20, 540 S.W.3d 742, 754. The credibility of any witness's testimony is to be assessed by the trier of fact-and the trier of fact may believe all, part, or none of it. Brumley v. Ark. Dep't of Human Servs. , 2015 Ark. App. 90, at 12, 455 S.W.3d 347, 355. Here, the circuit court did not believe any of Bentley's testimony.
In this case, Bentley needed to show improvement in her parenting skills and was given over two years to do so, but she failed. Accordingly, we hold that the circuit court did not clearly err in finding that there was little likelihood that further services would result in Bentley successfully reunifying with C.J. Therefore, we affirm the circuit court's aggravated-circumstances finding.
Bentley next argues that termination of her parental rights to C.J. was not in C.J.'s best interest. In determining whether termination is in the best interest of the juvenile, the circuit court must consider the likelihood that the juvenile will be adopted and the potential harm that would be caused by returning the juvenile to the custody of the parent. Chaffin v. Ark. Dep't of Human Servs. , 2015 Ark. App. 522, at 5, 471 S.W.3d 251, 255. Adoptability and potential harm, however, are merely two factors to be considered and need not be established by clear and convincing evidence. Id. , 471 S.W.3d at 255. The evidence presented on potential harm must also be viewed in a forward-looking manner and considered in broad terms, but a circuit court is not required to find that actual harm will result or to affirmatively identify a potential harm. Id. , 471 S.W.3d at 255.
Bentley does not challenge the circuit court's adoptability finding. She does, however, challenge the potential-harm finding. She contends that the circuit court clearly erred on this point because she had custody of C.T., a child born after C.J.'s removal, and C.T. was not harmed in her custody. For support, she cites the testimony of several witnesses. Ashley Shockley, an Oklahoma family-counseling therapist, testified that Bentley acted appropriately with C.T. during their sessions that began in June 2016. Shane Thompson, a DHS employee in Oklahoma, testified that his investigation of Bentley for alleged substance abuse and causing harm to C.T. were unsubstantiated and that he had no concerns about Bentley's parenting of C.T. And Donald Basham, an Oklahoma DHS employee, testified that at the request of Arkansas DHS, he performed a home study at Bentley's mother's home in October 2015, he found the home in order, and he approved the home study.
We reject Bentley's argument that because there was evidence that she provided a safe home for C.T. the circuit court clearly erred in finding that C.J. would be subjected to potential harm if returned to Bentley's home. Bentley is again asking that we reweigh the evidence-giving less to the best-interest evidence relating to C.J. and giving more to the evidence concerning C.T. Arguments asking that we reweigh the evidence are not reversible-error arguments. Allen , 2018 Ark. App. 136, at 20, 540 S.W.3d at 754. This court cannot act as a super fact-finder or second-guess the circuit court's credibility determination. Dunbar v. Ark. Dep't of Human Servs. , 2016 Ark. App. 472, at 12, 503 S.W.3d 821, 828-29.
In this case, the circuit court had ample evidence of potential harm to support its best-interest finding. As set forth above, this case began after it was discovered that C.J. was a victim of significant physical abuse. Evidence was presented that either Bentley played a role in C.J.'s injuries or, at the very least, failed to protect C.J. from the abuse. After more than two years of receiving DHS services, Bentley failed to demonstrate that she understood C.J.'s injuries and needs as there was significant evidence that her parenting and discipline skills were lacking. There was evidence that there was no bond between Bentley and C.J. Bentley continued to associate with Jeffrey, C.J.'s abuser, for the first half of the case and only admitted that Jeffrey abused C.J. once Jeffrey was sentenced. Bentley, who was evaluated with antisocial personality disorder with paranoid and borderline aspects, refused to attend the referral for counseling and pharmacological management.
Finally, Bentley's utter lack of honesty throughout the case, with every person she encountered, caused the circuit court to find that Bentley "lacks all credibility." The court stated that it had "never seen such dishonesty from a witness" and "could not trust one statement made by the mother." Based on this credibility finding, the circuit court further found that
[a]ll of these inconsistencies and lies are a concern to the court because a child who has had significant trauma and a mother who cannot be honest with even the simple facts cannot be trusted to protect this child. The mother's lack of truthfulness is of great concern to the court and the court specifically finds that there is a grave risk of physical harm if the child were to be returned to the mother.
After considering and weighing the evidence from the entire history of the case and from six days of termination hearings, the circuit court concluded that Bentley's overall progress did not demonstrate sufficient stability to ensure that C.J. would not be at continued risk of potential harm if returned to Bentley's custody. We are not left with a definite and firm conviction that a mistake has been made. Therefore, we hold that the circuit court did not clearly err in finding that termination was in C.J.'s best interest.
Affirmed.
Klappenbach and Murphy, JJ., agree.
The petition did not name Jeffrey as a defendant. Bentley was not married at the time of C.J.'s birth, and Jeffrey was determined by genetic testing not to be C.J.'s father.
This is the second attempt to appeal this case. In the first attempt, Bentley's counsel filed a motion to be relieved as counsel and a no-merit brief; however, we denied counsel's motion to be relieved and ordered rebriefing based on briefing deficiencies. Bentley v. Ark. Dep't of Human Servs. , 2018 Ark. App. 125, 2018 WL 847225. In this second attempt, counsel has filed a merit brief.
These three witnesses were a Fort Smith police detective, C.J.'s nurse at the emergency room, and an Oklahoma DHS investigator.
Jeffrey was later arrested for, confessed to, and was convicted of second-degree battery of C.J.
Bentley's second child, C.T., was born in July 2017.
Bentley resides in Oklahoma.
Detective Rice testified that there were taped recordings of Bentley's numerous jail-house telephone conversations with Jeffrey.
Because only one statutory ground is required to be proved, we need not discuss the alternative statutory grounds relied on by the circuit court in terminating Bentley's parental rights. Shaffer v. Ark. Dep't of Human Servs. , 2016 Ark. App. 208, at 6, 489 S.W.3d 182, 185-86.
McKay testified that C.J., despite her special needs, was adoptable. Moreover, McKay stated that C.J.'s foster family, who had had custody of C.J. throughout the case, was interested in adopting her.
Thompson said a second home study was requested by Arkansas DHS in September 2016; however, he was unable to perform that home study due to the investigation into Bentley's alleged abuse of C.T. | [
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DAVID M. GLOVER, Judge
Fredrick Leon Wilson was convicted by a Pulaski County Circuit Court jury of one count of sexual assault in the second degree and sentenced to 144 months in the Arkansas Department of Correction. Pursuant to Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and Rule 4-3(k) of the Rules of the Supreme Court and Court of Appeals, Wilson's counsel has filed a motion to withdraw on the ground this appeal is wholly without merit. The motion is accompanied by an abstract and addendum of the proceedings below, addressing all objections and motions decided adversely to Wilson, and a brief in which Wilson's counsel explains why there is nothing in the record that would support an appeal. The clerk of this court provided Wilson with a copy of his counsel's brief and notified him of his right to file a pro se statement of points for reversal. He has submitted no points. We affirm Wilson's conviction and grant his counsel's motion to withdraw.
Sufficiency of the Evidence
At the close of the State's case, Wilson moved for a directed verdict; he renewed the motion at the close of all the evidence. In his initial motion, Wilson argued the victim, M.L., was lying about what had occurred because she had told different stories about how the sexual contact occurred; the motion was denied. Wilson renewed his motion at the close of all the evidence; that motion was also denied.
A directed-verdict motion is a challenge to the sufficiency of the evidence. Holland v. State , 2017 Ark. App. 49, 510 S.W.3d 311. Our test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Wells v. State , 2017 Ark. App. 174, 518 S.W.3d 106. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. Circumstantial evidence may constitute substantial evidence to support a conviction if it excludes every other reasonable hypothesis other than the guilt of the accused; that determination is a question of fact for the finder of fact. Holland, supra. On appeal, the evidence is viewed in the light most favorable to the State, and only the evidence supporting the verdict is considered. Wells, supra. Weighing the evidence, reconciling conflicts in testimony, and assessing credibility are all matters exclusively for the trier of fact. Holland, supra.
A person commits sexual assault in the second degree if the person, being eighteen years of age or older, engages in sexual contact with another person who is less than fourteen years old and not the person's spouse. Ark. Code Ann. § 5-14-125(a)(3) (Repl. 2013). "Sexual contact" is defined as any act of sexual gratification involving the touching, directly or through clothing, of the sex organs, buttocks, or anus of a person or the breast of a female. Ark. Code Ann. § 5-14-101(10). "Sexual gratification" is not defined in the statute, but our appellate courts have construed the words in accordance with their reasonable and commonly accepted meanings. Chawangkul v. State , 2016 Ark. App. 599, 509 S.W.3d 10. A sexual-assault victim's testimony may constitute substantial evidence to sustain a conviction for sexual assault. Id. The victim's testimony need not be corroborated; the victim's testimony alone, describing the sexual contact, is enough for a conviction. Id.
Thirteen-year-old M.L. testified that on the day of the incident, Wilson, M.L.'s mother's cousin, was babysitting M.L. and her siblings. She, her brother, her sisters, and Wilson were wrestling and playing the "wedgie" game; Wilson asked her brother and sisters to leave the room; he turned the lights off; and he tried to put his penis in her butt. M.L. stated she was clothed but Wilson pulled her pants and underwear down; his penis was on the outside of his clothes and it was "standing up"; and he put his "wiener" in her butt. On cross-examination, M.L. said she told the prosecutor Wilson had put his penis in her vagina but earlier told the police detective Wilson had put his penis in her butt, not her vagina. M.L. also testified she told her father that Wilson had put his penis inside her, removed it, and rubbed it on her vagina.
Thus, M.L. testified to several different ways the sexual contact had occurred, but they all involved sexual contact, and any discrepancies were to be resolved by the finder of fact. Because M.L.'s testimony, without more, is sufficient to sustain a conviction, the circuit court did not err in denying Wilson's directed-verdict motions.
Other Adverse Rulings
The State made three objections during Wilson's voir dire of potential jurors on the basis Wilson was attempting to "fact qualify" the jury. The circuit court sustained the State's objections. Rule 32.2 of the Arkansas Rules of Criminal Procedure provides that during voir dire, the circuit court may question prospective jurors regarding matters bearing on their qualifications to serve as jurors, as well as permit additional questions it deems reasonable and proper by the defendant or his attorney and the prosecuting attorney. The extent and scope of voir dire is within the sound discretion of the circuit court; any restriction of voir dire examination will not be reversed on appeal unless the circuit court abuses its discretion. Hughes v. State , 98 Ark. App. 375, 255 S.W.3d 891 (2007). With the wide discretion given to the circuit court in conducting voir dire, we cannot say the circuit court abused its discretion.
There were numerous evidentiary rulings adverse to Wilson during the testimony of the witnesses that can be grouped into seven categories: speculation, hearsay, expert-witness testimony, asking leading questions of a young sex-abuse victim, attacking a witness's credibility with specific instances of conduct involving truthfulness, impeaching a witness's testimony with evidence of convictions of crimes, and the circuit court's control over interrogation of witnesses and presentation of evidence in its courtroom. Our court will not reverse a circuit court's evidentiary ruling unless there was an abuse of discretion. Williams v. State , 2012 Ark. App. 447, 2012 WL 3744714.
There were several rulings adverse to Wilson based on objections to speculation. A witness may not testify about an issue unless evidence is introduced to support a finding that he had personal knowledge of the matter. Ark. R. Evid. 602. We have reviewed each adverse ruling involving an objection based on speculation and have determined the circuit court did not abuse its discretion in making those rulings.
There were also several rulings adverse to Wilson based on objections to hearsay. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Ark. R. Evid. 801 (2017). Hearsay is not admissible unless provided for by law or by the Arkansas Rules of Evidence. Ark. R. Evid. 802. Again, having reviewed each ruling, we hold there was no abuse of discretion by the circuit court in any of these hearsay rulings.
There were several rulings adverse to Wilson concerning the manner of the presentation of witness testimony and evidence at trial. Rule 611(a) of the Arkansas Rules of Evidence provides the circuit court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. The circuit court did not abuse its discretion in making these rulings.
Wilson objected to the testimony of Dr. Zachary Shearer, a physician at Arkansas Children's Hospital (who performed the physical exam of the victim), and Chris Glaze, a forensic DNA examiner at the Arkansas Crime Laboratory, when each witness was asked a hypothetical question during their testimony. Both witnesses were accepted as expert witnesses in their fields. An expert witness may testify in the form of an opinion or otherwise. Ark. R. Evid. 702. The circuit court did not abuse its discretion in allowing both these witnesses to express their opinions.
During M.L.'s testimony, Wilson objected when the State, on redirect examination, questioned her about whether she remembered what had happened to her incorrectly the first time. Defense counsel objected to the prosecutor leading the witness; the circuit court overruled the objection. In sexual-abuse cases involving young victims, it is within the circuit court's discretion to permit leading questions on direct examination if necessary to elicit the truth, and such action will not be reversed absent an abuse of discretion. Hamblin v. State , 268 Ark. 497, 597 S.W.2d 589 (1980). Given the latitude afforded a circuit court in these evidentiary matters, we cannot say the circuit court abused its discretion in allowing the prosecutor to ask the victim leading questions.
During the testimony of Kris Thomas, M.L.'s mother's stepfather, Wilson asked if M.L.'s mother had a reputation for being untruthful. The State objected when Wilson asked Thomas to recount specific instances of M.L.'s mother's untruthfulness based on Rule 608 of the Arkansas Rules of Evidence, and the objection was sustained. Rule 608(b) provides:
Specific instances of conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
Without objection, Wilson asked questions concerning M.L.'s mother's truthfulness or untruthfulness; however, the State objected when Wilson began to ask about specific instances, in contravention of Rule 608(b). There was no abuse of discretion in the circuit court's ruling.
The last adverse ruling occurred when Ahkeem Murphy, M.L.'s mother's boyfriend, was questioned by defense counsel about whether he had been in trouble with the law; Murphy admitted he had been. Defense counsel then asked Murphy if he had been in trouble for lying, and Murphy answered no. At that time, the State advised the circuit court that Murphy had no felonies on his record, nor did Murphy have any misdemeanors involving truthfulness. The circuit court inquired if defense counsel had a good-faith basis for asking the question; defense counsel admitted he did not know if Murphy had been convicted of any crime; and the circuit court admonished defense counsel such questions would not be allowed without a good-faith basis for asking such questions about criminal history. Rule 609(a) of the Arkansas Rules of Evidence concerns impeachment by evidence of conviction of crimes and provides:
For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
Here, defense counsel admitted he had no good-faith basis for asking Murphy those questions; he admitted he knew nothing about Murphy's criminal history. The circuit court did not abuse its discretion in ruling as it did.
The test for filing a no-merit brief is not whether there is any reversible error but whether an appeal would be wholly frivolous. Robertson v. State , 2018 Ark. App. 13, 2018 WL 523250. Counsel asserts that after thoroughly reviewing the record, he has found no nonfrivolous arguments to support an appeal. His brief lists the rulings adverse to Wilson, and counsel explains "why each adverse ruling is not a meritorious ground for reversal." Ark. Sup. Ct. R. 4-3(k)(1) (2017). From our review of the record and the brief presented to us, we find compliance with Rule 4-3(k). Wilson's conviction is affirmed, and counsel's motion to withdraw is granted.
Affirmed; motion to withdraw granted.
Gladwin and Whiteaker, JJ., agree.
This is the third time this case has been before our court. In Wilson v. State , 2017 Ark. App. 392, 2017 WL 2665026 (Wilson I ), our court remanded this case for supplementation of the record with the omnibus hearing, ordered rebriefing, and denied counsel's motion to withdraw. Counsel supplemented the record with the omnibus hearing, and he received permission from our court to stand on his original brief. In Wilson v. State , 2017 Ark. App. 644, 2017 WL 5762358 (Wilson II ), our court again denied counsel's motion to withdraw and ordered rebriefing due to counsel's failure to address several rulings adverse to Wilson. Counsel corrected these omissions and has now addressed all adverse rulings. | [
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In a letter dated May 11, 2016, OLTC informed Snyder it had investigated an incident of alleged abuse against her, determined the allegation was valid, and was issuing a "Founded Report" against her. Snyder was informed of her right to appeal the ruling, which she did, and in a decision dated December 30, 2016, the DHS hearing officer upheld the OLTC decision finding abuse. Snyder then appealed to circuit court, which affirmed the finding of abuse and the placement of Snyder's name on the Registry. Snyder now appeals that decision to our court.
Administrative Hearing Testimony and Evidence
In a prepared statement to the hearing officer, OLTC representative Barbara James stated that OLTC received a report on May 6, 2016, that Snyder, a CNA at Sherwood, had abused SM while adjusting a blood-pressure cuff by forcefully moving SM's right arm to hold it down and then jerking her arm in a forward motion two or three times to the degree SM's wheelchair rocked back and forth. Based on that information, OLTC determined the allegation of abuse was founded.
At the agency hearing, Dawn Bearden, a registered nurse and director of nursing at Sherwood at the time of the incident, testified she reviewed the video of Snyder attempting to obtain the blood-pressure reading from SM and confirmed there was inappropriate treatment by Snyder. Bearden said Snyder was having difficulty placing the cuff and jerked SM's right arm several times to straighten it; SM's wheelchair was physically moved due to the force used by Snyder. Bearden's stated definition of abuse was physical harm to a patient, which included infliction of pain; based on what she saw on the video, Bearden believed SM experienced pain as a result of Snyder's actions.
On cross-examination, Bearden admitted Snyder was a caring CNA who never had an allegation of abuse made against her before this incident. Bearden stated that after the incident, a body audit was performed on SM, which revealed no bruising or discoloration; likewise, x-rays of SM's right arm and shoulder were also negative. Bearden explained that while SM had some rigidity, it was not to the point where her arm had to be "yanked" in order to provide care, and the video showed very aggressive jerking of SM's arm. While she agreed there was no physical evidence of injury, such as bruising, fractures, or a break in the skin, Bearden nevertheless concluded SM had suffered physical abuse at the hands of Snyder because, in her professional medical opinion, SM suffered pain from Snyder's actions.
On redirect examination, Bearden explained that while SM was resistant to treatment at times based on her dementia, there was a care plan in place when a patient was resistant, which was to back away and allow the patient time to calm down and then reattempt the care after the patient's agitation has subsided. Bearden remained steadfast in her belief there was physical evidence of maltreatment of SM because her arm was jerked on multiple occasions so forcefully that her wheelchair moved, which was sufficient in her mind to rise to the level of abuse.
Gerlonda Porter, who worked in housekeeping at Sherwood, observed the incident between Snyder and SM. She said she saw Snyder "yank" SM's arm while attempting to take her blood pressure, and when she "yanked it really hard" a second time, Porter asked Snyder why she did that. Snyder told Porter she did it because SM was fighting back, but Porter testified SM was not fighting back. Porter stated she heard SM make a sound like the pulling of her arm hurt her; she asked SM if she was okay after the incident, and SM shook her head. This incident concerned Porter enough that she felt she had no choice but to report it to Dalphine Webb, the charge nurse; Porter also spoke to Renee Phillips, Sherwood's administrator, as a result of the incident, and she reiterated to Phillips what she had written in her statement-she saw Snyder yank SM's arm and when she asked Snyder why she did it, Snyder told her that SM was fighting back. Porter said she had never seen Snyder neglect or abuse any other resident, but it was her opinion Snyder appeared to be frustrated in the video.
Nathan Rivers, who also worked in housekeeping at Sherwood, testified he was in the hallway with SM, Porter, and Snyder when the incident occurred. He heard Porter ask Snyder why she was yanking SM's arm, but he did not see the incident. After Rivers watched the video of the incident, he said there was an obvious jerk, and Porter asked why Snyder was jerking SM's arm. Rivers said SM had "an angry look" on her face, but he did not recall that she made any sounds.
Dalphine Webb, a registered nurse and the shift supervisor at Sherwood the day of the incident, testified she was told of the interaction between SM and Snyder by a staff member who reported Snyder was yelling at SM and "snatching" on her. When Webb asked Snyder what was going on, Snyder told her SM was being difficult about the placement of the blood-pressure cuff so she "snatched" her arm. Webb asked Snyder if she had "snatched" SM's arm, and Snyder replied yes, because SM was being difficult. Webb then told Snyder to write a witness statement, clock out, and leave the premises because that conduct was patient abuse. Webb made this decision prior to seeing the video, but she stated that viewing the video reinforced her conclusion Snyder's actions constituted abuse. Webb explained that while there were difficult patients, the employees were there to protect the residents; and while some patients were difficult at times, you had to walk away if things were not "going like they need to go." Webb had a body audit performed on SM and had x-rays taken of SM's shoulder due to the incident; while she could not recall the results of the body audit, she stated the x-rays were negative for fractures or dislocation. Webb stated Snyder appeared to be a caring CNA, and there were no other reports of abuse or neglect regarding Snyder. Webb admitted she did not talk with SM, and she received no reports SM was crying or moaning or that she was upset or distressed; however, Webb said SM would not have volunteered that she was hurting. Webb's determination was based on Porter's report and Snyder's interview; she said anytime you "snatch" a patient, that is abuse, and when Snyder candidly admitted to her she had "snatched" SM's arm, Webb took it at face value and concluded SM had been abused.
Charla Renee Phillips, Sherwood's administrator, testified she was obligated to report abuse and neglect to OLTC as well as to local police. She said she received a report of an allegation of abuse involving Snyder from Webb; reviewed the video; and based on her review, concluded there was an episode of alleged abuse that required her to make a report to OLTC. While she considered Snyder to be a hard worker, it was Phillips's opinion Snyder moved faster than she needed to in performing her tasks with the residents; however, Phillips admitted she had never received any reports accusing Snyder of abuse or neglect. While she was required to also notify the police department as a part of her investigation, Phillips admitted Snyder had not been arrested in connection with the incident.
Snyder moved for a directed-verdict after Phillips's testimony, which was denied. Snyder testified on her own behalf. As she viewed the video, Snyder explained she placed the blood-pressure cuff on SM's forearm and had to reposition SM's arm because her arm tended to retract. Snyder stated it was absolutely necessary to take SM's blood pressure. Snyder stated she never saw any physical injury to SM, nor did she hear SM make any sounds or make any facial expressions that made her think her actions had placed SM in some type of pain. Snyder claimed she did not intentionally abuse SM.
On cross-examination, Snyder disagreed that SM's arm could have been repositioned at a later point in time; she claimed she had never seen an actual written care plan until the incident with SM, and she denied she had been trained regarding the particular treatment of SM. She said she just needed to raise SM's arm to position the blood-pressure cuff on her arm. Snyder explained she had not applied for other CNA jobs since her termination from Sherwood because she had learned prior to the incident she had been hired at UAMS to be a patient-care technician. After her testimony, Snyder rested and renewed her motion for directed verdict, which was denied by the hearing officer.
In his order, the hearing officer found the testimony of Porter, Rivers, and Webb credible; he did not find Snyder's testimony credible. He found that Snyder had jerked SM's arm in an inappropriate manner; SM suffers from Alzheimer's and dementia and is noncommunicative; the jerking of SM's arm would reasonably cause pain; the video footage and testimony of the nurses appeared to show the physical harm SM experienced at the hands of Snyder;
and there was sufficient evidence Snyder had abused SM.
Circuit Court Proceedings
Snyder appealed the hearing officer's decision to circuit court. Both Snyder and DHS made arguments to the circuit court. While the circuit court stated after viewing the video there was certainly a de minimis response to the jerking, the jerking of SM's arm was abrupt and "way out of line." The circuit court affirmed the hearing officer's decision finding the allegation of abuse to be founded.
Standard of Review
On appeal, our review is directed toward the decision of the administrative agency rather than the decision of the circuit court. Gildehaus v. Arkansas Alcoholic Beverage Control Bd. , 2016 Ark. 414, 503 S.W.3d 789. The review of administrative decisions is limited in scope. Ahmad v. Arkansas State Med. Bd. , 2018 Ark. App. 111, 542 S.W.3d 224. The standard of review to be used by both the circuit court and the appellate court is whether there is substantial evidence to support the agency's findings. W.N. v. Arkansas Dep't of Human Servs. , 2018 Ark. App. 346, 552 S.W.3d 483. The administrative agency's decision is afforded considerable deference in part because these agencies are better equipped by specialization, insight through experience, and more flexible procedures than courts to determine and analyze legal issues affecting their agencies. Gildehaus, supra. The Administrative Procedures Act (APA) provides that a court may reverse or modify an agency's order when the agency's findings, inferences, conclusions, or decisions are (1) in violation of constitutional or statutory provisions; (2) in excess of the agency's statutory authority; (3) made upon unlawful procedure; (4) affected by other error or law; (5) not supported by substantial evidence of record; or (6) arbitrary, capricious, or characterized by an abuse of discretion. Ark. Code Ann. § 25-15-212(h) (Repl. 2014); Williform v. Arkansas Dep't of Human Servs. , 2018 Ark. App. 314, 551 S.W.3d 401.
Default Judgment
Snyder first contends she should have been awarded a default judgment against DHS because of its failure to timely file the record on appeal in the circuit court. Arkansas Code Annotated section 25-15-212 (d)(1) provides:
Within thirty (30) days after service of the petition or within such further time as the court may allow but not exceeding an aggregate of ninety (90) days, the agency shall transmit to the reviewing court the original or a certified copy of the entire record of the proceedings under review.
In a motion for extension of time to file the record, filed on March 10, 2017, DHS stated its director had been served with a copy of Snyder's petition for review on February 6, 2017, making the certified administrative record due to be filed on or before March 8, 2017. In this motion, DHS requested two extra days to file the record. Snyder resisted DHS's motion and moved for default judgment. On March 15, 2017, the circuit court found good cause existed for a two-day extension and no prejudice was shown by the grant of the two-day extension. The circuit court denied Snyder's request for a default judgment in an order filed on April 20, 2017.
Snyder argues she was entitled to a default judgment because DHS failed to file the record within thirty days. She is incorrect. First, agency actions governed by the APA are exempt from the Arkansas Rules of Civil Procedure, which do not apply to administrative proceedings. Ford v. Keith , 338 Ark. 487, 996 S.W.2d 20 (1999) ; Arkansas Dep't of Human Servs. v. Campbell , 87 Ark. App. 206, 189 S.W.3d 495 (2004) (citing Whitlock v. G.P.W. Nursing Home, Inc. , 283 Ark. 158, 672 S.W.2d 48 (1984) ). Therefore, default judgment is not an appropriate remedy for an appeal from an administrative proceeding.
Additionally, the statute clearly provides that the circuit court may allow up to an aggregate of 90 days in which to transmit the entire record of the agency proceeding that is being reviewed. Snyder does not argue DHS failed to transmit the entire record within the 90-day limitation of the statute. The circuit court allowed more than 30 days but less than 90 days, which conforms with the statute. We find no error on this point.
Commission of Abuse
Snyder next argues her conduct did not rise to the level of abuse as defined by the statute. With regard to any long-term-care facility resident, "abuse" is defined as
(i) Any intentional and unnecessary physical act that inflicts pain on or causes injury to an endangered person or an impaired person, excluding court-ordered medical care or medical care requested by the patient or long-term care facility resident or a person legally authorized to make medical decisions on behalf of the patient or long-term care facility resident.
(ii) Any intentional act that a reasonable person would believe subjects an endangered person or an impaired person, regardless of age, ability to comprehend, or disability, to ridicule or psychological injury in a manner likely to provoke fear or alarm, excluding necessary care and treatment provided in accordance with generally recognized professional standards of care.
Ark. Code Ann. § 12-12-1703 (1)(A)(i) & (ii) (Supp. 2017).
Snyder contends repositioning of SM's arm was at times necessary because her arms would retract from rigidity due to her medical conditions. She argues there were no visible signs of physical injury-no bruising, discoloration, skin breaks, or fractures-and although the police were called, no charges were filed. Snyder further asserts no witness reported seeing or hearing any reaction from SM that would indicate she suffered pain from the maneuvering of her arm.
Snyder is incorrect when she asserts no witnesses reported seeing or hearing any reaction from SM that would indicate she suffered pain from the incident. Gerlonda Porter specifically stated she heard SM make a sound like it hurt when Snyder yanked her arm; when she asked SM if she was okay after the incident, SM shook her head. Porter was concerned enough about the incident that she felt compelled to report it to both Webb and Phillips.
Giving the evidence the strongest probative force in favor of the agency's decision, Arkansas Public Employees Retirement System v. Taylor , 2013 Ark. 37, 425 S.W.3d 738, and because the hearing officer's decision will be upheld if there is any substantial evidence to support it, C.C.B. v. Arkansas Department of Health & Human Services , 368 Ark. 540, 247 S.W.3d 870 (2007), we affirm the agency's finding of abuse. While it is true there was no physical injury, we hold the evidence supports the finding that Snyder's actions inflicted pain on SM. While Snyder testified she did not intend to intentionally abuse SM, she did intend to pull SM's arm to reposition it, to the point that her actions moved SM's wheelchair when she pulled on her arm. Snyder told Webb she "snatched" SM's arm because SM was resisting her. Such an action was unnecessary, since there were protocols in place to deal with dementia patients, including returning later to perform the medical treatment. Furthermore, the hearing officer found Snyder's testimony was not credible, while finding Porter, Rivers, and Webb's testimony to be credible. Given the testimony and our standard of review, we hold there is substantial evidence to support the hearing officer's finding that the allegation of abuse was founded.
Harshness of Punishment
Snyder's last argument is that her punishment-being placed on the Adult and Long-Term Care Facility Resident Maltreatment Central Registry-is too harsh. We do not reach this argument because it was not preserved. Snyder did not raise this issue to the DHS hearing officer. "It is essential to judicial review under the Administrative Procedures Act that issues must be raised before the administrative agency appealed from or they will not be addressed by this court." Sarna v. Arkansas Dep't of Corr. Sex Offender Comm. , 2017 Ark. App. 684, at 4, 537 S.W.3d 312, 314 (citing Parkman v. Sex Offender Screening & Risk Assessment Comm. , 2009 Ark. 205, at 23-24, 307 S.W.3d 6, 20 ). See also Gildehaus, supra. Because Snyder failed to raise this issue before the administrative agency, it cannot now be addressed on appeal.
Even if Snyder had preserved this issue, given our affirmance of the hearing officer's finding of abuse, this issue must be affirmed as well. Arkansas Code Annotated section 12-12-1716(a)(3)(B) (Repl. 2009) states: "An offender's name shall be placed in the registry if upon completion of the administrative hearing process, the department's investigative determination of founded is upheld." The statute makes it mandatory for Snyder's name to be placed on the registry; no lesser punishment is permitted, a fact conceded by Snyder's counsel during oral argument.
Affirmed.
Vaught and Hixson, JJ., agree.
DHS filed a second extension-of-time motion on April 10, 2017, requesting additional time to submit a copy of a video of the incident; Snyder made no objection to this motion.
Counsel for DHS conceded at oral argument this case was not the most egregious case of abuse that has been perpetrated in a long-term-care facility. | [
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BART F. VIRDEN, Judge
Appellant Linda Kantor appeals from the Union County Circuit Court's order appointing her ex-husband, David Kantor, guardian of their disabled adult daughter, Rebecca (DOB: 4-4-1997). Linda argues that (1) the circuit court lost jurisdiction over the case when, pursuant to Ark. Code Ann. § 9-27-306(a)(1)(B) (Repl. 2015), there was no request for the circuit court to continue jurisdiction and no determination was made whether Rebecca was engaged in a course of treatment, both of which had to occur before Rebecca's eighteenth birthday and (2) the circuit court erred by appointing David guardian of Rebecca because the Arkansas Department of Human Services (DHS), which filed the petition on David's behalf, did not have party status and failed to present sufficient proof to satisfy the statutory requirements of Ark. Code Ann. §§ 28-65-211 and 28-65-203 (Repl. 2012 & Supp. 2017). We reverse and remand.
I. Procedural History
This case began as a dependency-neglect proceeding in December 2014. DHS filed a petition for emergency custody and dependency-neglect based on allegations of maltreatment toward then seventeen-year-old Rebecca, who was described as "severely mentally handicapped." DHS's investigation revealed that Rebecca had not been attending school because she and Linda had been passing the flu back and forth to each other; that Linda had not taken Rebecca to see a doctor; that Linda acknowledged that Rebecca had been sitting in urine since the previous day but that Linda said she had been too sick to change her; that Linda was uncertain whether she could care for Rebecca and had said at some point that Rebecca would be better off in DHS's custody; and that Linda denied wanting to commit suicide but said that she had been diagnosed with depression. Linda was asked to submit to a drug screen, but she refused. DHS then contacted David, who resides in Texas, but David said that he could not take Rebecca at that time because he needed time to find a facility for her because he works and cares for his and Linda's younger daughter. DHS took a seventy-two-hour hold on Rebecca on December 16, 2014. In the affidavit, the social worker recounted DHS's history with the family. There were seventeen allegations of abuse or neglect on twelve occasions between July 2002 and June 2014. Five of the allegations, including abuse (cuts/welts/bruises), medical neglect, and environmental neglect, were found true.
The circuit court entered an ex parte order for emergency custody on December 22, 2014, and later found probable cause to believe that Rebecca was dependent-neglected, that the emergency conditions that necessitated Rebecca's removal from Linda's custody continued to exist, and that Rebecca should remain in DHS's custody. On March 19, 2015, the circuit court adjudicated Rebecca dependent-neglected and specifically found that Linda was not in a position to care for Rebecca's special needs. The goal was reunification. The circuit court entered review orders in June and September 2015, each time finding that it was in Rebecca's best interest to remain in DHS's custody. A permanency-planning order was entered on January 12, 2016, in which the circuit court found the following:
The Court, mindful of the available permanency planning dispositions, in accordance with the best interest, health, and safety of the juvenile ... does hereby determine the goal of the case shall be Another Planned Permanent Living Arrangement (APPLA). The Department shall develop a plan that addresses the quality of services, including, but not limited to, independent living services, if age appropriate, and a plan for the supervision and nurturing the juvenile shall receive. The Court selects this goal because the Department documented a compelling reason, specifically Rebecca is 18-years old and requires full time care that her parents cannot provide[.]
[I]t would not be in the best interest of the juvenile to follow one of the permanency plans listed in A.C.A. 9-27-338(c)(1)-(6).
Additional review orders were entered, all of which continued the goal of APPLA.
On September 22, 2017, DHS petitioned for the appointment of David as guardian of Rebecca. DHS alleged that Rebecca is incapacitated by reason of mental disability and further alleged that
Rebecca Kantor communicates mostly through hand gestures, is incontinent, has unsteady ambulation-requires constant monitoring to prevent falls, has Cerebral Palsy, needs assistance with all daily living requirements, understands 70% of simple clear directions, to such extent the alleged incapacitated person lacks sufficient understanding or capacity to make or communicate decisions to meet the essential requirements for the alleged incapacitated person's health or safety.
On September 26, 2017, Linda filed a petition to appoint herself as Rebecca's guardian. Linda agreed that Rebecca is incapacitated, and her allegations supporting that conclusion mirrored those of DHS. Further, Linda alleged that David had never taken care of Rebecca's physical or medical needs in the past and that she has provided all of Rebecca's healthcare throughout her life until DHS took custody of Rebecca.
II. Testimony-October 16, 2017
DHS introduced several exhibits at the beginning of the hearing. A DHS report indicated that Rebecca had entered foster care on December 16, 2014, through Arkansas Support Network (ASN), and in August 2016, she had been moved to an apartment with full-time supervision. A "Personal Care Service Plan" from ASN states that Rebecca has cerebral palsy ; that she is currently living independently in her home with 24/7 staff; that she attends a day-treatment program through ASN Monday through Friday; that she communicates mostly through gestures but can say "no" and "bye"; that she is incontinent of bowel and bladder; that she understands seventy percent of simple, clear directions; and that she needs assistance with all activities of daily living (ADLs). The document lists Rebecca's disabling conditions and functional abilities and then sets forth a personal-care plan with respect to eating, bathing, and dressing ; personal hygiene; bowel and bladder requirements; taking medication; laundry and incidental housekeeping; shopping for personal items; and mobility and ambulation. The "consumer goal" is to "continue to assist and provide services r/t ADLs for Rebecca so that she will be able to live as independently in the community as possible without risk of institutionalization." A second similar document was introduced by DHS called "Personal Care Assessment and Service Plan," which is signed by a physician stating, "I have examined this patient within the past 60 days. I have reviewed the assessment and I confirm its accuracy. I authorize the personal care assistance detailed in this service plan...."
David Kantor testified that he and Linda were married "two years max." He stated that he lives in Plano, Texas, and has no intention of moving because his ninety-two-year-old father is in an assisted-living facility there. He said that his home is about a six-hour drive from Rebecca's placement in Fayetteville. David admitted that he had not visited Rebecca since she had been at ASN because of the long distance but said that he was working on getting Rebecca moved to Texas. He said that he wanted Linda's visits with Rebecca to be supervised because he had caught Linda smoking marijuana with their younger, then sixteen-year-old daughter, H.K.; however, he insisted that he would never prevent Linda from seeing Rebecca. David testified that Rebecca has cerebral palsy but that "[the doctors] don't really have a syndrome for her." He said that he is aware that she has trouble walking, has an eating disorder, and is mentally retarded. He acknowledged that Rebecca can never live by herself. David conceded that Linda had taken care of Rebecca's doctors' appointments and treatments in the past and had kept him apprised of her situation. He said that Linda had changed after they split up and that "as time wore on it got to be too much for her to take care of Rebecca." With respect to DHS's history with the family, David said that Linda was the offender thirteen times and that he had been involved with reporting alleged maltreatment on two of those occasions.
Linda Kantor testified that Rebecca is incapacitated by reason of mental disability and that in 2003 a geneticist at Arkansas Children's Hospital had diagnosed Rebecca with an "unidentified unknown syndrome with cerebral palsy like symptoms." Linda said that Rebecca is "clerical but non-verbal" and that she had been learning sign language. She agreed that Rebecca cannot do anything for herself. When she was asked who had provided most of the hands-on care for Rebecca since birth, Linda said,
We decided together that one of us needed to stop working to take care of R.K. because she required 24/7 care. Even though I made more money, it was decided that I would be the one to give up my career to care for R.K. and I've done so ever since. I've done everything for her. I've taken her to all of her doctor appointments. When we were together, I've been the one doing everything. Setting up the appointments with the specialists, the therapists, gathering information that needed to be done, dealing with the school. I've done all of that.
Linda further testified that she believed ASN was the best place right now for Rebecca. She said that she should be appointed Rebecca's guardian because she is "experienced with her disabilities and her special needs." She said that David was "never really involved with her care" and that "he was never really interested." Linda testified that she has been diagnosed with depression, anxiety, and posttraumatic stress disorder, that she could pass a drug screen that day, that she sees a therapist twice a month, and that she did not know of any warrants for her arrest from the State of Texas but later said that she had been charged with driving without insurance and had not been able to pay the fine. Linda said that she did not own a vehicle but that she had access to two vehicles. She conceded having canceled visits with Rebecca twice in August 2017 and twice in September 2017 due to lack of transportation, but she insisted that both vehicles had mechanical problems and that one was "still dead." Linda admitted that she had had no contact with Rebecca for two years and that she had been living in Springdale for four months before she started visiting Rebecca in Fayetteville in June 2017.
III. Circuit Court's Order
On December 18, 2017, the circuit court entered an order appointing David guardian of Rebecca's person. The circuit court found that Rebecca is in need of a guardian and that David is suitable and capable to act as her guardian. The circuit court limited David's power in stating that Rebecca cannot be moved from her current placement without court approval, waived the requirement of bond "inasmuch as petitioner is seeking a guardianship of the person only," denied Linda's petition, and noted that Linda's visitation with Rebecca would continue to be supervised.
IV. Discussion
A. Jurisdiction
Arkansas Code Annotated section 9-27-306 provides the following:
(a)(1) The circuit court shall have exclusive original jurisdiction of and shall be the sole court for the following proceedings governed by this subchapter, including without limitation ... (B) Proceedings in which a juvenile is alleged to be dependent or dependent-neglected from birth to eighteen (18) years of age, except for the following:
(i)(a) A juvenile who has been adjudicated dependent or dependent-neglected before eighteen (18) years of age may request the court to continue jurisdiction over the juvenile until twenty-one (21) years of age so long as the juvenile is engaged in a course of instruction or treatment, or is working at least eighty (80) hours a month toward gaining self-sufficiency.
(b) The court shall retain jurisdiction only if the juvenile remains or has a viable plan to remain in instruction or treatment, or is working at least eighty (80) hours a month toward gaining self-sufficiency.
(c) The court shall discontinue jurisdiction only after a hearing to determine whether:
(1) The juvenile knowingly and voluntarily is requesting to leave care or the juvenile has failed to be engaged in or have a viable plan to participate in a course of instruction or treatment or is not working at least eighty (80) hours per month toward gaining self-sufficiency; and
(2) The Department of Human Services has fully complied with §§ 9-27-363 and 9-28-114; or
(ii) A juvenile may contact his or her attorney ad litem to petition the court to return to the court's jurisdiction to receive independent living or transitional services if the juvenile:
(a) Was adjudicated dependent or dependent-neglected;
(b) Was in foster care at eighteen (18) years of age;
(c) Left foster care but desires to submit to the jurisdiction of the court before reaching twenty-one (21) years of age to benefit from independent living or transitional services; or
(d) Left foster care and decides to submit to the jurisdiction of the court and return to foster care to receive transitional services[.]
....
(2) A juvenile shall not under any circumstance remain under the court's jurisdiction past twenty-one years of age.
Citing Ark. Code Ann. § 9-27-306(a)(1)(B)(i), Linda argues for the first time on appeal that the circuit court lost jurisdiction to hold hearings and enter orders in this matter after Rebecca turned eighteen because-before her eighteenth birthday-Rebecca had not requested that the circuit court retain jurisdiction of the matter and because there had been no finding that she was engaged in a qualifying treatment plan. Linda further relies on Z.L. v. State , 2015 Ark. 484, 478 S.W.3d 207, in which the Arkansas Supreme Court interpreted section 9-27-306(a)(2) set forth above to mean that the circuit court's jurisdiction ceases on the juvenile's twenty-first birthday and held that the circuit court lacked jurisdiction to impose an adult sentence after Z.L. had turned twenty-one.
We do not address Linda's interpretation of section 9-27-306(a)(1)(B)(i) because Linda's argument does not involve subject-matter jurisdiction. Also, Z.L. is distinguishable in that it is a delinquency case involving section 9-27-306(a)(1)(A)(i) & (ii). More importantly, the case is distinguishable by the fact that Z.L. argued below that the circuit court had lost jurisdiction after he turned twenty-one.
Although Linda characterizes her argument on appeal as one involving subject-matter jurisdiction, which can be raised for the first time on appeal, we do not agree. Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. Banning v. State , 22 Ark. App. 144, 737 S.W.2d 167 (1987). It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Id. Subject-matter jurisdiction does not depend on a correct exercise of that power in any particular case. Id. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court. Id. If it was within the court's jurisdiction to act upon the subject matter, that action is binding until reversed or set aside. Id.
Amendment 80 to the Arkansas Constitution provides that circuit courts are established as the trial courts of original jurisdiction of all justiciable matters not otherwise assigned pursuant to the Constitution. Ark. Const. amend. 80, § 6 (A). The Arkansas Supreme Court issued Administrative Order Number 14, which provides that the circuit judges of a judicial circuit shall establish the following subject-matter divisions in each county of the judicial circuit: criminal, civil, juvenile, probate, and domestic relations. It further provides that the designation of divisions is for the purpose of judicial administration and caseload management and is not for the purpose of subject-matter jurisdiction. Ark. Sup. Ct. Admin. Order No. 14(1)(a). It also provides that, although guardianship proceedings are generally "probate" cases, the definition of "probate" is not intended to restrict the juvenile division of circuit court from hearing a guardianship matter that arises in juvenile proceedings. Ark. Sup. Ct. Admin. Order No. 14(1)(b).
Here, the circuit court had subject-matter jurisdiction to hear the guardianship proceeding, which arose out of dependency-neglect proceedings. While the circuit court may have erred in retaining jurisdiction in the absence of a formal request that it do so, a failure to follow statutory procedure does not oust the subject-matter jurisdiction of the court. Noble v. Norris , 368 Ark. 69, 243 S.W.3d 260 (2006) ; cf. Picinich v. Ark. Dep't of Human Servs. , 2018 Ark. App. 288, 549 S.W.3d 916 (holding that the circuit court did not lose subject-matter jurisdiction when it failed to follow mandated statutory time frames for entry of adjudication order). The statute, Ark. Code Ann. § 9-27-306(a)(1)(B)(i)(a) , contemplates that the circuit court's juvenile division may exercise jurisdiction over a juvenile up to twenty-one years of age. Because Linda did not object to what was an irregularity in the proceedings below, her argument is not preserved. See, e.g. , D.C.T. v. State , 2012 Ark. App. 227, 2012 WL 1111393 (holding that the circuit court did not lack subject-matter jurisdiction when it ordered appellant to register as a sex offender even though such order is permitted by Ark. Code Ann. § 9-27-356(b)(2) only if it is recommended by the person conducting the sex-offender risk assessment).
B. Guardianship
1. Standing and party status
As a preliminary matter, DHS argues that Linda lacks standing to challenge the appointment of David as Rebecca's guardian because Linda was not a party to the proceedings given that Rebecca is an adult. DHS also says that, because Linda was not entitled to notice under Ark. Code Ann. §§ 28-65-207(b)(2), 28-1-110, and 28-1-112 (Repl. 2012), she was not an interested party. We disagree.
The question of standing is a matter of law for this court to decide, and the appellate courts review questions of law de novo. Hinton v. Bethany Christian Servs. , 2015 Ark. App. 301, 462 S.W.3d 361. Linda may not have been entitled to notice, but she was served with DHS's petition, she filed a counterpetition for guardianship, she attended the hearing, and the circuit court disposed of both petitions in the same order on appeal. See Cogburn v. Wolfenbarger , 85 Ark. App. 206, 148 S.W.3d 787 (2004) (rejecting appellee's argument that appellant lacked standing because appellant had been given notice of the hearing, filed an answer to the petition, and appeared at the hearings). Because Linda was aggrieved by the order on appeal, which denied her petition for guardianship, she has standing.
Linda has a related argument. She contends that DHS had no authority to be a party to any action related to Rebecca or to file a guardianship petition on David's behalf. She relies on Young v. Arkansas Department of Human Services , 2012 Ark. 334, 2012 WL 4163177, which she says stands for the proposition that DHS is no longer a necessary party when the dependency-neglect action is no longer active. Young is distinguishable. Young began as a dependency-neglect action, but once the circuit court granted a permanent guardianship of S.S. to the Sextons, S.S. was no longer a dependent-neglected juvenile. The dependency-neglect proceedings were thus dismissed, and the case was closed. Later, the Sextons filed a motion to stop all visitation between Young and S.S. The circuit court "purported to reopen" the closed dependency-neglect case under the Juvenile Code. The supreme court held that the circuit court erred in applying the Juvenile Code because the case could not be reopened. Here, the case was not reopened-in fact, it had never been closed, and Rebecca remained in DHS's custody. Any person may file a petition for the appointment of himself or herself or some other qualified person as guardian of an incapacitated person. Ark. Code Ann. § 28-65-205(a). Rebecca was in DHS's custody pursuant to a court order, and DHS filed a petition to appoint David as guardian. Linda makes no persuasive argument that DHS was not a proper party to petition for guardianship.
We hold that Linda has standing to challenge the order on appeal and that DHS was a proper party to file a guardianship petition on David's behalf; thus, we move on to Linda's arguments.
Before appointing a guardian, the court must be satisfied that (1) the person for whom a guardian is prayed is either a minor or otherwise incapacitated, (2) a guardianship is desirable to protect the interests of the incapacitated person, and (3) the person to be appointed guardian is qualified and suitable to act as such. Ark. Code Ann. § 28-65-210. Linda challenges the first and third elements. Guardianship proceedings are reviewed de novo, but the appellate courts will not reverse a guardianship decision unless it is clearly erroneous, taking into consideration the circuit court's superior position to weigh and assess the credibility of the witnesses and their testimony. Blunt v. Cartwright , 342 Ark. 662, 30 S.W.3d 737 (2000).
2. Proof of incapacitation
"Incapacitated person" means a person who is impaired by reason of a disability such as mental illness, mental deficiency, physical illness, chronic use of drugs, or chronic intoxication, to the extent of lacking sufficient understanding or capacity to make or communicate decisions to meet the essential requirements for his or her health or safety or to manage his or her estate. Ark. Code Ann. § 28-65-101(5)(A). "Incapacitated person" includes an endangered adult or impaired adult who is in the custody of DHS. Ark. Code Ann. § 28-65-101(5)(B) (Supp. 2017).
Arkansas Code Annotated section 28-65-211(b)(1) (Repl. 2012) states that, in determining the incapacity of a person for whom a guardian is sought to be appointed for cause other than minority, disappearance, or detention, or confinement by a foreign power, the court shall require that the evidence of incapacity include the oral testimony or sworn written statement of one or more qualified professionals, whose qualifications shall be set forth in their testimony or written statements. Also, a professional evaluation shall be performed prior to the court hearing on any petition for guardianship except when appointment is being made because of minority, disappearance, detention, or confinement by a foreign power. Ark. Code Ann. § 28-65-212(a)(1). The evaluation shall be performed by a professional or professionals with expertise appropriate for the respondent's alleged incapacity. Ark. Code Ann. § 28-65-212(a)(2). The evaluation shall include the following: (1) the respondent's medical and physical condition; (2) his or her adaptive behavior; (3) his or her intellectual functioning; and (4) a recommendation as to the specific areas for which assistance is needed and the least restrictive alternatives available. Ark. Code Ann. § 28-65-212(b).
Linda argues that the service plan introduced by DHS was not truly an evaluation; it was not a sworn written statement; and the doctor's qualifications were not set out in the service plan. We agree that, even assuming that the service plan qualifies as an evaluation, it was not a sworn written statement that set forth the physician's qualifications.
In Autry v. Beckham , 2014 Ark. App. 692, 450 S.W.3d 247, Autry petitioned for guardianship of her grandmother, Louise Whaley. The Beckhams, Whaley's neighbors, intervened and requested that they be appointed her guardians. Although the Beckhams moved for an evaluation of Whaley and their motion was granted, no evaluation was performed. Instead, an attorney ad litem met with Whaley and said that she felt that Whaley was incapacitated. Both parties thought that this was sufficient and that to require more would lead to an absurdity, but this court reversed and held that, without the required professional evaluation, the circuit court did not have sufficient evidence to find that a guardian needed to be appointed for Whaley.
In Cogburn , supra , Wolfenbarger filed a petition to be appointed her mother's guardian, and Cogburn, a son, asked that the petition be denied. The mother testified that she did not want a guardian. Both parties introduced letters from doctors with opposing viewpoints on the mother's incapacitation. The circuit court granted Wolfenbarger's petition. Cogburn appealed, arguing, among other things, that there was no compliance with section 28-65-212 because there was no oral testimony or sworn written statement from a qualified professional. This court agreed with Cogburn and held that the circuit court clearly erred because there was no oral testimony or sworn statements and because the evaluations did not contain the four findings that are required; specifically, there was no finding as to the mother's adaptive behavior.
Here, the extensive documentation regarding Rebecca found in the service plan arguably qualifies as an evaluation. We agree with Linda, however, that the service plan is not a sworn written statement and does not set out the doctor's qualifications. DHS contends that the doctor's authorization serves as a promise that the information contained in the service plan is accurate and that the "M.D." following the doctor's name complies with "the spirit" of the statute. However, we are not convinced that the latter suffices under the statute given that section 28-65-212(a)(2) requires that the evaluation be performed by a professional with expertise appropriate for the respondent's alleged incapacity. Moreover, a doctor's authorization for treatment is not a sworn written statement. Alternatively, DHS argues that Linda invited any error given that she alleged in her petition for guardianship that Rebecca was incapacitated. We do not agree that the invited-error doctrine should be applied here.
In Rogers v. Ritchie , 2017 Ark. App. 420, 528 S.W.3d 272, there was a dispute about estate expenditures between Rogers, as guardian of her husband and his estate, and Ritchie, as personal representative of the estate, by virtue of a judgment against Rogers's husband's accounting firm. Barbara moved to terminate the guardianship, but the circuit court refused. On appeal, Barbara argued, among other things, that the circuit court erred in refusing to find that her appointment as guardian was void on its face because the order was entered without the requisite evidence of her husband's incapacity from a qualified professional. This court held that Barbara could not make this argument because she had invited the error: it was Barbara who had requested the guardianship and failed to obtain the requisite professional evaluation, and she at one time defended the validity of the guardianship when others, including Ritchie, moved to set it aside.
Linda was perhaps complicit in this error, but the facts here are not as strong as those in Rogers . Linda was not the first one to file a petition for guardianship, and she had not been appointed guardian such that she could have ever defended its validity. We will not apply the invited-error doctrine under this set of facts. Because we hold that the circuit court clearly erred in finding that DHS proved Rebecca's incapacitation as required by the statute, we do not address Linda's argument that David was not qualified in that he had not appointed a resident agent for service of process and had not submitted a bond and that the circuit court must have found David unsuitable on some level because it had limited his ability to move Rebecca from ASN.
We reverse and remand with directions that this guardianship matter be transferred to the probate division of the circuit court for further action consistent with this decision.
Reversed and remanded.
Gruber, C.J., agrees.
Whiteaker, J., concurs.
I agree with the majority that this case should be reversed and remanded. I agree that there was insufficient evidence presented to satisfy the statutory requirements under Arkansas Code Annotated sections 28-65-211 and 29-65-203 (Supp. 2017). I also agree with the majority that the circuit court had subject-matter jurisdiction to hear the guardianship proceeding, which arose out of the dependency-neglect proceeding. Ark. Dep't of Human Servs. v. Collier , 351 Ark. 506, 95 S.W.3d 772 (2003). I write separately, however, because, with all due respect to the circuit court, I believe that the circuit court erred and exceeded its statutory authority when it acted beyond Rebecca's eighteenth birthday. I acknowledge that this error was an irregularity in the proceeding below and agree that Linda's arguments are not preserved because she did not object below. Because this error is capable of repetition, however, I feel that a separate opinion is necessary to address it.
I begin with an analysis of pertinent provisions of the Juvenile Code. Arkansas Code Annotated section 9-27-306 (Repl. 2015) provides in pertinent part:
(a)(1) The circuit court shall have exclusive original jurisdiction of and shall be the sole court for the following proceedings governed by this subchapter, including without limitation:
....
(B) Proceedings in which a juvenile is alleged to be dependent or dependent-neglected from birth to eighteen (18) years of age, except for the following:
(i)(a) A juvenile who has been adjudicated dependent or dependent-neglected before eighteen (18) years of age may request the court to continue jurisdiction over the juvenile until twenty-one (21) years of age so long as the juvenile is engaged in a course of instruction or treatment, or is working at least eighty (80) hours a month toward gaining self-sufficiency.
(b) The court shall retain jurisdiction only if the juvenile remains or has a viable plan to remain in instruction or treatment, or is working at least eighty (80) hours a month toward gaining self-sufficiency.
(c) The court shall discontinue jurisdiction only after a hearing to determine whether:
(1) The juvenile knowingly and voluntarily is requesting to leave care or the juvenile has failed to be engaged in or have a viable plan to participate in a course of instruction or treatment or is not working at least eighty (80) hours per month toward gaining self-sufficiency; and
(2) The Department of Human Services has fully complied with §§ 9-27-363 and 9-28-114; or
(ii) A juvenile may contact his or her attorney ad litem to petition the court to return to the court's jurisdiction to receive independent living or transitional services if the juvenile:
(a) Was adjudicated dependent or dependent-neglected;
(b) Was in foster care at eighteen (18) years of age;
(c) Left foster care but desires to submit to the jurisdiction of the court before reaching twenty-one (21) years of age to benefit from independent living or transitional services; or
(d) Left foster care and decides to submit to the jurisdiction of the court and return to foster care to receive transitional services.
....
(2) A juvenile shall not under any circumstance remain under the court's jurisdiction past twenty-one (21) years of age.
Ark. Code Ann. § 9-27-306 (Repl. 2015).
A juvenile is defined as an individual who is "[f]rom birth to age eighteen (18) years, whether married or single[.]" Ark. Code Ann. § 9-27-303(32)(A) (Supp. 2017). Our supreme court has held that the language of section 9-27-303(32)(A) is "plain and unambiguous, and it clearly defines 'juvenile' as an individual from 'birth to eighteen.' " Collier, supra.
Taking these two provisions together, I find section 9-27-306 to be plain, unambiguous, and clear; therefore, by statute, the juvenile court has "exclusive jurisdiction" in dependency-neglect proceedings only until the juvenile reaches the age of eighteen. Ark. Code Ann. § 9-27-306(a)(1)(B). Once the juvenile turns eighteen, the juvenile court loses its authority and can retain authority over a juvenile past his or her eighteenth birthday only if one of two exceptions apply.
First, the court can continue to exercise its authority up to the juvenile's twenty-first birthday if, prior to the juvenile's eighteenth birthday, the juvenile requests the court retain jurisdiction and if the juvenile is engaged in a course of instruction or treatment or is working at least eighty (80) hours a month toward gaining self-sufficiency. Ark. Code Ann. § 9-27-306(a)(1)(B)(i). Here, there is nothing to reflect that Rebecca requested the court to retain jurisdiction, and this first exception does not apply.
Second, the juvenile court can reassert jurisdiction once the juvenile has reached the age of majority under limited statutory authority. A juvenile between the ages of eighteen and twenty-one who had previously been under the jurisdiction of the court can ask the court through his or her ad litem to reinvest jurisdiction. Ark. Code Ann. § 9-27-306(a)(1)(B)(ii). Again, there is nothing to reflect that Rebecca or her ad litem asked the court to reinvest jurisdiction, and this exception does not apply. Accordingly, under the clear, unambiguous terms of the statute, the juvenile court erred and exceeded its statutory authority to act once Rebecca reached the age of eighteen.
Section 9-27-306(a)(2) states that a juvenile shall not under any circumstances remain under the juvenile division's jurisdiction past twenty-one years of age. Rebecca turned twenty-one in April of this year. | [
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N. MARK KLAPPENBACH, Judge
Appellant Adrianne Otis appeals the June 13, 2017 order of the Pulaski County Circuit Court that terminated her parental rights to her son, CO, who was born in August 2012. Appellant argues on appeal that the trial court's finding that it was in her child's best interest to terminate her parental rights is not supported by clear and convincing evidence. Thus, appellant argues, the trial court's termination order must be reversed. We affirm.
We review termination-of-parental-rights cases de novo. Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851. At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Repl. 2015); Dunn v. Ark. Dep't of Human Servs. , 2016 Ark. App. 34, 480 S.W.3d 186. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Anderson v. Douglas , 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep't of Human Servs. , 96 Ark. App. 247, 240 S.W.3d 626 (2006). Credibility determinations are left to the fact-finder. Henson v. Ark. Dep't of Human Servs. , 2014 Ark. App. 225, 434 S.W.3d 371. In resolving the clearly-erroneous question, a high degree of deference is given to the trial court, as it is in a far superior position to observe the parties before it and to judge the credibility of the witnesses. Wallace v. Ark. Dep't of Human Servs. , 2017 Ark. App. 376, 524 S.W.3d 439.
Appellant does not challenge the trial court's finding of statutory grounds. Her argument is focused solely on the best-interest finding. The best-interest finding must be based on a consideration of two factors: (1) the likelihood that if parental rights are terminated, the juvenile will be adopted and (2) the potential harm caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). Adoptability is not an essential element but is rather a factor that the trial court must consider. Singleton v. Ark.Dep't of Human Servs. , 2015 Ark. App. 455, 468 S.W.3d 809. A trial court is not required to find that actual harm would result or to affirmatively identify a potential harm; rather, potential harm must be viewed in a forward-looking manner and in broad terms, including the harm the child suffers from the lack of stability of a permanent home. Vail v. Ark. Dep't of Human Servs. , 2016 Ark. App. 150, 486 S.W.3d 229 ; Caldwell v. Ark. Dep't of Human Servs. , 2016 Ark. App. 144, 484 S.W.3d 719. A parent's past behavior is often a good indicator of future behavior. Stephens v. Ark. Dep't of Human Servs. , 2013 Ark. App. 249, 427 S.W.3d 160. It is the "best interest" finding that must be supported by clear and convincing evidence after consideration of the foregoing factors. Vail , supra.
With these legal principles in mind, we examine the evidence presented to the trial court. The Arkansas Department of Human Services (DHS) sought and was granted emergency custody of almost-four-year-old CO in August 2016 after investigating an allegation that Otis was inadequately supervising him because of her drug use. Two weeks later, the trial court found that probable cause existed to support the child's removal from Otis and that he should remain in DHS custody.
At the adjudication hearing in September 2016, Otis stipulated to a finding that the child was dependent-neglected. The trial court also found at the adjudication hearing that there was clear and convincing evidence that Otis had subjected CO to aggravated circumstances in that it was unlikely that services to the family would result in successful reunification within a reasonable period of time as measured from the child's perspective. The trial court listed several of Otis's positive drug-test results and what appeared to be attempts to alter some of the specimens she had provided. The trial court noted her "extensive mental health history," with diagnoses of an unspecified schizophrenia /psychotic disorder and an alcohol-use disorder. Otis's mental-health records indicated that she heard voices on a daily basis telling her to do bad things; that she had homicidal thoughts and aggression; that she was paranoid and had hallucinations that were worse at night; and that she was previously housed in prison in a special-populations unit due to her depressive symptoms. The trial court found that she was an unfit parent "and there is a substantial question" whether she could ever be made a fit parent. Otis was married to CO's legal father, who had a criminal history and who Otis had accused of being physically abusive. The trial court set the initial goal of reunification and ordered services to be provided to both parents. The trial court also made the finding that in this case it did not have to permit a full year of services to be given, if it determined that sufficient progress was not being made. In addition to counseling, therapy, parenting classes, and supervised visitation, Otis was ordered to attend an anger-management class. Otis did not appeal the adjudication order.
In January 2017, a permanency-planning hearing was conducted. The trial court found Otis not to be credible. Otis was partially compliant with the case plan, but she blamed DHS for her failures in getting to appointments. The trial court recited that Otis had been arrested for public intoxication in mid-October 2016 and had failed to comply with drug screening. The trial court listed several drug tests wherein the sample lacked the appropriate temperature or Otis claimed the inability to produce a specimen. The trial court found that Otis was "not minimally fit to parent any child," and it authorized the filing of a petition to terminate her parental rights.
The trial court found that CO's legal father (Christopher Otis, Sr., who did not appear at this hearing) was excluded by DNA testing as CO's biological father. It ordered DHS to consider whether there were any potential relatives who might be proper placements for CO. Services were continued, including the provision of transportation. Otis was ordered to attend inpatient drug treatment, submit to drug testing, and attend therapy.
In April 2017, DHS filed a petition to terminate parental rights alleging two statutory grounds found in Arkansas Code Annotated section 9-27-341(b)(3)(B), the subsequent-other-factors-arising ground, and the aggravated-circumstances ground. Otis's continued lack of compliance was detailed in this petition.
The termination hearing was conducted in May 2017. Otis appeared, but Christopher Otis, Sr., did not. The DHS caseworker testified that DHS had referred Otis for inpatient drug treatment, which was available, but Otis did not attend and instead went to some outpatient meetings. Otis had been referred for parenting classes but did not show up. The caseworker recited the various drug screens and the positive results obtained, opining that Otis had not remedied her drug issues. The caseworker stated that a home study showed her home not to be an appropriate placement because it lacked furniture and had ongoing construction; the home had functioning water and lights but not gas. The caseworker further testified about Otis's mental-health problems, which was the reason she received disability income, and to the fact that Otis failed to attend therapy appointments. CO was noted to have some behavioral problems and developmental delays, but the caseworker thought he was adoptable because he was only four years old and was making progress on his issues.
Terri Rese, Otis's cousin by marriage, testified that she had been involved in CO's life and that he spent a lot of time in her home. She wanted a home study to be conducted on her home. Rese agreed that Otis used drugs and had mental problems; she (Rese) kept CO to protect him when it was necessary. Rese stated that around the time of the adjudication, Otis was angry and did not want her visiting or having CO.
Otis testified that she had paranoid schizophrenia with hallucinations, but she took medications. She agreed that her drug of choice was PCP, having used it about two weeks before the termination hearing. She acknowledged that she needed to stay off drugs but said she was working on it; she testified that she did drugs because she missed CO so much. She said that she had gotten furniture for her apartment. She stated that although the apartment had water and lights, there was no gas. Otis loved her son and wanted him to come home, but if not with her, then she wanted him placed with family members (her cousin or grandmother). She said she just needed a little more time because she had realized how important he was to her and she was making progress.
At the conclusion of the evidence, DHS and the child's attorney ad litem argued that termination of her parental rights was the proper outcome, given her mental-health problems, drug problems, lack of compliance, and lack of proper housing. Otis's attorney argued that she should be given a little more time.
The trial court dismissed Mr. Otis from the proceedings and found that both statutory grounds had been proved against Otis by clear and convincing evidence. The trial court recounted the history of this case, Otis's many positive drug-test results along the way, and the psychological evaluation to which she had finally submitted. During the evaluation, Otis reported that she could not read or write, and she admitted to extensive drug use, including use just two days before the evaluation. The evaluator thought that it was possible she was intoxicated at the evaluation. She was deemed to have a significant functional impairment, hindering her ability to perform the ordinary demands of daily life or self care. (She presented that day with her left eye almost swollen shut.) Otis failed to attend mental-health visits consistent with her mental-health needs. Otis failed to attend drug rehabilitation. The trial court found that Otis "is not minimally fit and appropriate to parent her child" and that she would not, with even five more years of services, be able to reunify with CO. The trial court found that it was in CO's best interest to terminate her parental rights, having given consideration to the likelihood that the child would be adopted and the potential harm to CO if returned to her custody. The trial court found specifically that CO would be subjected to the risk of exposure to drugs and the risk associated with having a mother with significant mental-health and drug issues. The termination order was filed of record in June 2017, and Otis timely appealed from that order.
Otis asserts on appeal that the overall finding that it was in CO's best interest to terminate her parental rights is clearly erroneous. She does not contest the finding of statutory grounds. Otis argues in particular that the trial court erred because (1) she should have been given more than ten months in which to have a meaningful chance to reunify with CO; (2) the parental rights of Christopher Otis, Sr., were not terminated in these proceedings and he remained the legal father of CO, so the child was not actually being cleared for permanent placement; and (3) DHS failed to explore relative placement with CO's cousin, grandmother, or other relatives. None of Otis's arguments are persuasive. We hold that the trial court's finding that it was in the child's best interest to terminate Otis's parental rights is not clearly erroneous.
First, a child's need for permanency and stability may override a parent's request for additional time to improve the parent's circumstances. Dozier v. Ark. Dep't of Human Servs. , 2010 Ark. App. 17, 372 S.W.3d 849. Here, the trial court found aggravated circumstances such that there was little likelihood that further services would result in Otis successfully reunifying with CO. In fact, the trial court remarked that even five more years of services would not likely result in a successful reunification. In short, Otis was mentally ill and a drug user, neither of which she adequately addressed despite referrals for such services by DHS. See Shaffer v. Ark. Dep't of Human Servs. , 2016 Ark. App. 208, 489 S.W.3d 182.
Second, Otis argues that the legal father was dismissed from these proceedings, which "calls into question the ability of [DHS] to clear CO for permanency through adoption." This, she argues, renders it against CO's best interest to terminate Otis's parental rights. We disagree. Arkansas Code Annotated section 9-27-303(40) defines "parent" to include the man to whom the biological mother was married at the time of the child's conception or birth. Mr. Otis remained CO's legal father, but Mr. Otis did not appeal the termination order that dismissed him as a party, and Otis concedes that she has no standing to assert any potential right that Mr. Otis may possess. Importantly here, Arkansas Code Annotated section 9-27-341(a)(1)(B)(2) provides that termination of parental rights is to be used "only in cases in which the department is attempting to clear a juvenile for permanent placement." (Emphasis added.) The statute does not require that termination of parental rights be a predicate to permanent placement, but only that DHS be attempting to clear the juvenile for permanent placement when parental rights are terminated, which was the case here. See M.T. v. Ark. Dep't of Human Servs. , 58 Ark. App. 302, 307, 952 S.W.2d 177, 179 (1997). Even though CO was not yet cleared for permanent placement, the trial court did not clearly err in finding that termination of his mother's parental rights remained in his best interest.
Addressing Otis's third argument, we hold that the lack of exploration of placing CO with a relative before termination does not render the trial court's overall best-interest finding clearly erroneous. Indeed, a trial court is permitted to set termination as the goal even when a relative is available and requests custody because the Juvenile Code lists permanency goals in order of preference, prioritizing a plan for termination and adoption unless the juvenile is already being cared for by a relative, the relative has made a long-term commitment to the child, and termination of parental rights is not in the child's best interest. See Elliott v. Ark. Dep't of Human Servs. , 2017 Ark. App. 672, 536 S.W.3d 642 ; Helvey v. Ark. Dep't of Human Servs. , 2016 Ark. App. 418, 501 S.W.3d 398. Here, CO was not being cared for by a relative at the time of the termination hearing. See Scrivner v. Ark. Dep't of Human Servs. , 2016 Ark. App. 316, 497 S.W.3d 206. The grandmother did not appear or testify at the termination hearing. Rese (the cousin) did testify, but her testimony reflected that Otis did not, at least initially, want Rese to be considered a placement or to be permitted visitation. Moreover, Otis's attorney never argued to the trial court that termination was not proper because there was a potential relative placement for CO. The attorney's argument focused only on the request for more time for Otis to rehabilitate her situation.
In summary, after our de novo review, we are not left with a definite and firm conviction that the trial court clearly erred in finding it to be in CO's best interest that Otis's parental rights be terminated. The order terminating Otis's parental rights to CO is therefore affirmed.
Affirmed.
Abramson, J., agrees.
Gruber, C.J., concurs.
No legal or biological father is part of this appeal.
Otis had tested positive for benzodiazepines, opiates, PCP, and cocaine. | [
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Kellie and Steven also provided testimony regarding their parental fitness. Both parents testified that they are capable of handling the day-to-day aspects of the children's lives, and both parents produced witnesses who testified that each party is a fit parent. The attorney ad litem recommended joint custody and formulated the visitation schedule that was later adopted by the court.
The circuit court entered the divorce decree on August 26, 2016. The decree sets forth that the parents share joint custody of their minor children and that Kellie has primary custody. The decree specifies that during the school year, the children are with Steven every other Thursday through Monday. Steven is also allotted an additional overnight visit on the opposite Tuesday beginning after school and returning the children to school on Wednesday morning. Holidays and summer vacation are split evenly between the parents and rotated yearly. The parties are ordered to cooperate, be civil toward each other, foster love, respect, and communication between the children and the other parent, communicate with each other about the children's activities and all medical issues, keep each other informed of any address or contact information changes, and in no way interfere with the other parent obtaining necessary information about the children. In the order, the circuit court reduced Steven's child support obligation to $349 per month "based on the additional time he keeps the children."
Kellie filed a timely notice of appeal.
II. Points on Appeal
A. Joint Custody
For her first point on appeal, Kellie argues that the circuit court erred in designating the custody arrangement in the decree as "joint custody" because "the parties do not have an 'approximate or reasonable equal division of time with the child' and therefore this is not joint custody." On this point we affirm.
We perform a de novo review of child-custody matters, but we will not reverse the circuit court's findings unless they are clearly erroneous. Taylor v. Taylor , 353 Ark. 69, 110 S.W.3d 731 (2003). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court is left with the definite and firm conviction that a mistake has been made. Smith v. Parker , 67 Ark. App. 221, 998 S.W.2d 1 (1999). We recognize and give special deference to the superior position of the circuit court to evaluate the witnesses, their testimony, and the child's best interest. It has often been said that we know of no case in which the superior position, ability, and opportunity of the circuit court to observe the parties carry as great a weight as when the interests of minor children are involved. Carver v. May , 81 Ark. App. 292, 101 S.W.3d 256 (2003).
Our legislature has determined that it is the public policy of our state to favor joint custody. See Ark. Code Ann. § 9-13-101(a)(1)(A)(iii) (Repl. 2015). For the purposes of the statute, "joint custody" means "the approximate and reasonable equal division of time with the child by both parents individually as agreed to by the parents or as ordered by the court." Ark. Code Ann. § 9-13-101(a)(5). Recently, in Cooper v. Kalkwarf , 2017 Ark. 331, at 15, 532 S.W.3d 58, 67, our supreme court emphasized that the legislature intended that joint custody may exist when the division of time is only approximately equal, holding that "the joint-custody arrangement does not necessarily involve a precise '50/50' division of time."
In Cooper , as in the instant case, the decree set forth that the parties shared joint custody with primary custody in the mother, and our supreme court held that this language was ambiguous on its face. Id. , at 11. The Arkansas Supreme Court held that the decree awarded the father nearly equal time with the child, that "it is unclear from the language in the decree whether the parties had 'joint custody,' " and that "the circuit court was correct in reviewing the parties' subsequent statements and conduct."
In the instant case, Kellie simply argues that the circuit court erred in referring to the custody arrangement as joint custody because the decree does not divide the parents' time with the children approximately equally. Kellie does not assert that parental conduct supports her argument that true joint custody does not exist; thus, we are limited to reviewing only whether the circuit court's division of time is approximately equal.
With that in mind, we look to the Glissons' divorce decree. The decree sets forth that during the school year Steven is allotted every other Thursday through Monday, plus an additional overnight visit on the opposite Tuesday (six out of every fourteen days), that in the summer each parent has the children every other week, and that holidays are shared on an alternating schedule. We hold that his arrangement falls within the range of "approximate and reasonable equal division of time with the child" as set forth in Ark. Code Ann. § 9-13-101(a)(1)(A)(iii). We find no error, and we affirm.
B. Appropriateness of Joint Custody
Alternatively, Kellie argues that if this court holds that she and Steven share true joint custody of their minor children, the circuit court erred because joint custody is not in the best interest of the children. Specifically, she argues that Steven is emotionally unstable and should not "have any form of custody of the children," though she asserts that the court should allow some visitation with Steven. Kellie also asserts that Steven is unable to properly handle H.A.G.'s SPD and H.G.'s corn allergy. Kellie's argument is not well taken, and we affirm.
In support of her argument that joint custody is not in the children's best interest, Kellie asserts that Steven is emotionally unstable and refers to her testimony at the trial recounting Steven's emotional outbursts and erratic behavior. She argues that Steven suffers from depression and that he does not take medication that the physician prescribed.
Kellie also asserts that Steven is unable to properly manage their son's SPD, and she refers to her testimony regarding the wedding reception in support of her argument. Kellie also argues that H.G.'s corn allergy requires careful avoidance of corn; however, she does not explain how Steven is incapable of managing H.G.'s allergy or assert that he has not been able to manage it in the past.
Steven responds that the evidence supports the circuit court's decision to award joint custody. He refers to the marriage counselor's testimony that he is a good father and that in their sessions Kellie had never complained about Steven's parenting ability. Steven asserts that Kellie's testimony concerned isolated incidents that took place over a seventeen-year marriage and that his version of those events is quite different than Kellie's. Steven points out that, until recently, Kellie had left the children with him every weekend and that there had been no problems associated with his parenting ability during those weekends. Steven also cites the testimony of his and Kelley's mutual friends that Steven is a good father. Steven refers to the ad litem's recommendation that joint custody is in the best interest of the children and that the court ordered the visitation schedule that the ad litem had formulated.
Kellie asks this court to reweigh the conflicting testimony given at trial and find differently than the circuit court regarding the appropriateness of joint custody; however, credibility determinations are left to the circuit court and we will not reweigh the evidence. Newman v. Ark. Dep't of Human Servs. , 2016 Ark. App. 207, at 13, 489 S.W.3d 186, 194. On our de novo review, we hold that the circuit court did not clearly err in finding that joint custody is in the best interest of the children.
C. Child Support
Kellie argues that the circuit court erred when it failed to determine Steven's income in setting the amount of child support. We agree, and on this point we reverse and remand.
As a rule, when the amount of child support is at issue, we will not reverse the circuit court absent an abuse of discretion. Hall v. Hall , 2013 Ark. 330, 429 S.W.3d 219. Before a court can refer to the child-support chart, the payor's income must be determined. Ark. Sup. Ct. Admin. Order 10, Section III; Office of Child Support Enf't v. Pittman , 70 Ark. App. 487, 490-91, 20 S.W.3d 426, 428 (2000). Our court has previously held that it is reversible error for the circuit court to fail to determine the payor's income in setting the amount of child support. See Ryburn v. Ryburn , 2014 Ark. App. 108, at 11, 432 S.W.3d 102, 109 (circuit court erred by not including a determination of the father's income or a list of explanations for deviating from the child-support guidelines);
Blalock v. Blalock , 2013 Ark. App. 659, 2013 WL 5964485, (reversed and remanded for further findings because the child-support order did not contain a determination of the payor's income or reference to the guidelines and did not recite whether the amount of child support deviated from the family-support chart).
In the present child-support order, the circuit court stated that the "child support obligation is hereby modified to the amount of $349.00 per month pursuant to Administrative Rule 10" and that the amount was "based on the additional time the Defendant keeps the children." The circuit court made no determination of income in its order; thus, we reverse and remand for the circuit court to do so.
Affirmed in part; reversed and remanded in part.
Glover and Murphy, JJ., agree.
Cooper is distinguishable from the instant case in that the primary issue in Cooper is whether a parent may relocate with the child without the consent of the other parent; however, the threshold issue for the court to resolve is the type of custody the parents share. | [
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RAYMOND R. ABRAMSON, Judge
Valeria Andrea Forkum appeals the Benton County Circuit Court order following her guilty plea entered pursuant to the Arkansas First Offender Act, which is codified at Arkansas Code Annotated sections 16-93-301 to -305 (Repl. 2016). On appeal, Forkum argues that the circuit court erred by denying her motion to transfer her criminal case to the division of the circuit court presiding over a dependency-neglect case involving her and her daughters. We dismiss the appeal.
On April 7, 2016, the State charged Forkum with second-degree domestic battery, third-degree domestic battery, and two counts of endangering the welfare of a minor. The charges stemmed from claims that Forkum had physically and emotionally abused her two daughters. The Arkansas Department of Human Services (DHS) opened a dependency-neglect case concerning the alleged abuse.
On April 8, 2016, the criminal division of the circuit court entered a no-contact order between Forkum and her daughters, and the court found that the no-contact order "shall remain in effect until modified or terminated by subsequent order of this court or until final disposition of the case by the court."
On April 18, 2016, the court held an arraignment hearing in which Forkum pled not guilty. She also asked the court to modify the April 8, 2016 no-contact order to allow DHS to offer her certain services. The court denied her request. Forkum then orally requested the court to transfer her criminal case to the division of the circuit court hearing the dependency-neglect petition. The court set a hearing on Forkum's transfer motion for June 20, 2016, but the hearing was later continued to July 6, 2016.
Before the transfer hearing, on May 31, 2016, Forkum filed a brief in support of her transfer motion. She argued that Arkansas Code Annotated section 9-27-306(a)(3)(A)-(B) (Repl. 2015) required the court to transfer the case.
(3)(A) When the department exercises custody of a juvenile under the Child Maltreatment Act, § 12-18-101 et seq., files a petition for an ex parte emergency order, or files a petition for dependency-neglect concerning that juvenile, before or subsequent to the other legal proceeding, a party to that petition may file a motion to transfer any other legal proceeding concerning the juvenile to the court hearing the dependency-neglect petition.
(B) Upon the filing of a motion, the other legal proceeding shall be transferred to the court hearing the dependency-neglect case.
(Emphasis added.) Forkum asserted that her criminal case constituted a "legal proceeding concerning the juvenile[s]" and because the subsection uses the word "shall," the circuit court was required to transfer the case. The State objected to the transfer. On July 6, 2016, the court held the transfer hearing, and the court orally denied the motion. The court entered a written order on that day.
On August 1, 2016, Forkum filed a "Notice of Appeal" of the July 6, 2016 order denying her motion to transfer. Specifically, she sought an interlocutory appeal or a writ of mandamus from our supreme court. On September 19, 2016, the supreme court denied Forkum's petition for a writ of mandamus without opinion.
Thereafter, on October 3, 2016, Forkum pled guilty to the criminal charges under the Arkansas First Offender Act. The court sentenced her to seventy months' probation, ordered her to serve 120 days in county jail, and fined her $1000. The court ordered that Forkum be released to work while serving her sentence in the county jail. The court also ordered that the no-contact order remain in place and set a status hearing for November 16, 2016. Forkum stated on the record that she understood that by pleading guilty, she waived her right to appeal the matter.
The court held the scheduled status hearing on November 16, 2016. At the hearing, Forkum renewed her motion to transfer the case to the division of the circuit court hearing the dependency-neglect petition. The court again denied the motion. The court heard testimony from Forkum's daughters and ordered that the no-contact order remain in place. Forkum also requested the court to extend her work-release hours for time to travel to work, and the court granted that request. On the same day as the hearing, the court entered a written order extending her work-release hours.
Forkum timely appealed the November 16, 2016 order to this court. On appeal, Forkum argues that the circuit court erred by denying her motion to transfer her criminal case to the division of the circuit court hearing the dependency-neglect case. She further argues that because the circuit court erred in retaining the case, the court consequently erred by implementing the no-contact order between her and her daughters. Because we do not have jurisdiction of the appeal, we cannot address the merits of Forkum's argument.
Rule 1(a) of the Arkansas Rules of Appellate Procedure-Criminal (2017) provides,
Right of Appeal. Any person convicted of a misdemeanor or a felony by virtue of trial in any circuit court of this state has the right to appeal to the Arkansas Court of Appeals or to the Supreme Court of Arkansas.
We have held that where there is no conviction, there is no right to appeal. See Lynn v. State , 2012 Ark. 6, 2012 WL 205881 ; Hughes v. State , 2011 Ark. 147, 2011 WL 1319851. Under the Arkansas First Offender Act, an accused enters a plea of guilty or nolo contendere before an adjudication of guilt, and the circuit court, without entering a judgment of guilt and with the defendant's consent, may defer further proceedings and place the defendant on probation for a period of not less than one year. Ark. Code Ann. § 16-93-303(a)(1)(A)(i) ; see also Thomas v. State , 349 Ark. 447, 79 S.W.3d 347 (2002). Thereafter, upon fulfillment of the terms and conditions of probation, the defendant shall be discharged without court adjudication of guilt, and the court shall enter an appropriate order dismissing the case, discharging the defendant, and expunging the record. Ark. Code Ann. § 16-93-303(b). Our supreme court has recognized that a plea of guilty or nolo contendere tendered pursuant to the First Offender Act is not a conviction. Lynn , 2012 Ark. 6 ; Montoya v. State , 2010 Ark. 419, 2010 WL 4366905 ; Harrell v. State , 331 Ark. 232, 962 S.W.2d 325 (1998) ; Duncan v. State , 308 Ark. 205, 823 S.W.2d 886 (1992). In this case, Forkum entered a guilty plea pursuant to the First Offender Act. Thus, she was not "convicted of a misdemeanor or a felony," and she has no right to appeal.
Further, even if Forkum stood convicted, she has no right to appeal because she pled guilty. Arkansas Rule of Appellate Procedure-Criminal 1(a) also provides that there is no direct appeal from a plea of guilty. An exception is created when a conditional plea of guilty is premised on an appeal of the denial of a suppression motion pursuant to Arkansas Rule of Criminal Procedure 24.3 (2017). Seibs v. State , 357 Ark. 331, 166 S.W.3d 16 (2004). Two other exceptions to the general rule are (1) when there is a challenge to testimony or evidence presented before a jury in a sentencing hearing separate from the plea itself and (2) when the appeal is from a posttrial motion challenging the validity and legality of the sentence itself. Id. Absent one of the exceptions, a defendant waives her right to appeal when she pleads guilty. Davis v. State , 2010 Ark. 393, 2010 WL 4156362 (per curiam). Here, Forkum's guilty plea does not lie within any of these exceptions. Accordingly, she has no right to appeal.
In her reply brief, Forkum argues that she is not appealing her conviction. Instead, she asserts that she is appealing the court's continuance of the no-contact order. Her argument is without merit. When Forkum entered her guilty plea on October 3, 2016, Forkum acknowledged that the terms of her guilty plea included that the no-contact order would remain in effect, and she further acknowledged that by pleading guilty, she waived her right to an appeal. Accordingly, she has no right to appeal, and we dismiss.
Dismissed.
Vaught and Hixson, JJ., agree.
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RAYMOND R. ABRAMSON, Judge
Charles Fuller appeals the order of the Arkansas Workers' Compensation Commission (the Commission) denying his claim for benefits. On appeal, Fuller argues that the Commission erred in finding that he failed to establish entitlement to (1) temporary total-disability and temporary partial-disability benefits and (2) additional medical treatment. We affirm.
Fuller worked as an emergency medical technician for Pope County. On June 22, 2015, Fuller injured his back while moving a patient from a gurney to a cot. He immediately reported the injury to his supervisor, and Pope County sent him to Monfee Medical Clinic, where an APN gave him a Toradol injection and a muscle relaxer. He returned to Monfee Medical Clinic on June 26, 2015, and received another injection, and the APN placed him on light-duty restrictions. On June 29, 2015, the APN found that Fuller had reached maximum medical improvement and released him to work on July 3 with no restrictions. Fuller returned to work for Pope County on that day, and he continued to work through the end of August. However, in September, he retired early. After he retired, Fuller continued to experience pain. He sought additional medical treatment through his personal physician. Pope County refused to pay for the medical treatment not received at Monfee Medical Clinic.
Fuller then filed a workers'-compensation claim seeking additional medical treatment, temporary total-disability benefits from August 30 through November 1, 2015, and temporary partial-disability benefits from November 1, 2015, through a date to be determined. An administrative law judge (ALJ) held a hearing on April 27, 2016.
At the hearing, Fuller testified that after he injured his back on June 22, 2015, he returned to work on July 3, 2015, but that he was not pain free and returned for financial reasons. He explained that the pain progressively worsened and that it prevented him from performing his duties at Pope County. He testified that he had previously been suspended from work for calling in sick, and he believed that if he requested more sick leave, he could either receive a greater suspension or be terminated. Thus, Fuller decided to enter retirement early. He stated that he informed his supervisor, Doug Duerr, that he needed to retire due to his back pain. He testified that after his retirement, he continued to experience pain and therefore sought additional medical treatment from his personal physician.
On cross-examination, Fuller admitted that he suffered from chronic back problems before his June 22, 2015 injury and that he had had an MRI, which showed two bulging disks. He stated that he had been on hydrocodone and that he had to constantly deal with his back pain. Fuller also testified that after his retirement from Pope County, he began working at the Dardanelle Post Office and that he works there about one to two hours a day.
At the hearing, Pope County introduced into evidence a "Work Ability and Plan of Care" document from the Monfee Medical Clinic dated June 29, 2015. On the form, the APN indicated that Fuller "had reached maximum medical improvement" and "may return to work without restrictions on July 3."
Pope County also introduced into evidence a form AR-N bearing Fuller's signature. The form provides, "My signature below indicates that I have been provided my rights regarding change-of-physician." Fuller admitted at the hearing that he completed the form, because the signature on the form matches his signature; however, he did not remember completing it, and he did not remember who gave him the form.
Duerr, Fuller's supervisor and the director of emergency services for Pope County, testified that when an employee suffers an injury at work, it is the common practice of his office to provide the injured employee with a form AR-N. He testified that he did not specifically remember providing Fuller with a form AR-N but that he was certain Fuller received the form.
Following the hearing, the ALJ entered a written order finding that Fuller had failed to prove entitlement to temporary total-disability benefits or temporary partial-disability benefits after July 3, 2015. The ALJ further found that Fuller had failed to prove entitlement to additional medical treatment. Fuller appealed the ALJ's decision to the Commission.
The Commission affirmed the ALJ's decision. Specifically, the Commission found that Fuller was not entitled to additional medical treatment because Pope County provided Fuller with notice of the change-of-physician procedure in the form AR-N, and Fuller sought additional medical treatment outside the change-of-physician rules. In making this determination, the Commission specifically credited Duerr's testimony that Fuller received the form. As to temporary total-disability benefits and temporary partial-disability benefits, the Commission found that Fuller had reached the end of his healing period on July 3, 2015, and thus was not entitled to benefits after that date. In determining that Fuller had reached the end of his healing period, the Commission cited the APN's evaluation of Fuller on June 29, 2015, as well as the fact that Fuller returned to work on July 3, 2015. Fuller appealed the Commission's decision to this court.
We review Commission decisions to determine whether there is substantial evidence to support them. Towler v. Tyson Poultry, Inc. , 2012 Ark. App. 546, 423 S.W.3d 664. Substantial evidence is relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. We review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings. Id. The Commission is the ultimate arbiter of weight and credibility. Id.
On appeal, Fuller first argues that the Commission erred in finding that he failed to establish entitlement to temporary total-disability benefits from August 30 through November 1, 2015, and temporary partial-disability benefits from November 1, 2015, to a date to be determined. He asserts that the evidence shows that he was completely unable to work from August 30 through November 1, 2015. He further argues that the evidence shows that he returned to work in November but that he could work only part time.
Temporary total disability is appropriate during the healing period in which an employee suffers a total incapacity to earn wages. Crawford v. Superior Indus. , 2009 Ark. App. 738, 361 S.W.3d 290. Temporary partial disability is appropriate during the healing period in which an employee suffers a partial incapacity to earn wages. Amaya v. Newberry's 3N Mill , 102 Ark. App. 119, 282 S.W.3d 269 (2008). The healing period is that period for healing of an accidental injury that continues until the employee is as far restored as the permanent character of his injury will permit and that ends when the underlying condition causing the disability has become stable and nothing in the way of new treatment will improve that condition. Farmers Co-op. v. Biles , 77 Ark. App. 1, 69 S.W.3d 899 (2002). The claimant has the burden to show that he remains in the healing period by a preponderance of the evidence. Hickman v. Kellogg, Brown & Root , 372 Ark. 501, 277 S.W.3d 591 (2008). When the healing period has ended is a factual determination that the Commission must make, and it will be affirmed on appeal if supported by substantial evidence. Tyson Foods, Inc. v. Turcios , 2015 Ark. App. 647, 476 S.W.3d 177.
In this case, we hold that the Commission's decision that Fuller failed to establish entitlement to temporary total-disability benefits and temporary partial-disability benefits after July 3, 2015, is supported by substantial evidence. The evidence shows that on June 29, 2015, the APN at Monfee Medical Clinic determined that Fuller had reached maximum medical improvement and released him to work on July 3, 2015, with no restrictions. And Fuller returned to work on that day. Even though Fuller testified that he had to retire early due to back pain and can work only a part-time job, it is the Commission's duty to make credibility determinations and to resolve any conflicts. Searcy Indus. Laundry, Inc. v. Ferren , 82 Ark. App. 69, 110 S.W.3d 306 (2003). Accordingly, we affirm on this point.
Fuller next argues that the Commission erred in finding that he was not entitled to additional medical treatment because he received a form AR-N containing notice of the change-of-physician rule but pursued unauthorized medical treatment. He asserts that the circumstances here are similar to those in Delargy v. Golden Years Manor , 2014 Ark. App. 499, 442 S.W.3d 889, and that there is insufficient evidence that he actually received a copy of the form.
Pursuant to Arkansas Code Annotated section 11-9-514(a)(3)(A)(i) (Repl. 2012), the employer has the right to select the initial treating physician. An employee may request a one-time change of physician. Ark. Code Ann. § 11-9-514(a)(2)(A), (a)(3)(A)(ii), (iii). When a claimant seeks a change of physician, he must petition the Commission for approval. Stephenson v. Tyson Foods, Inc. , 70 Ark. App. 265, 19 S.W.3d 36 (2000). Treatment or services furnished or prescribed by any physician other than the ones selected according to the change-of-physician rules, except emergency treatment, shall be at the claimant's expense. Ark. Code Ann. § 11-9-514(b) ; St. Edward Mercy Med. Ctr. v. Chrisman , 2012 Ark. App. 475, 422 S.W.3d 171.
Arkansas Code Annotated section 11-9-514(c)(1) mandates that the employer, after being notified of an injury, deliver a copy of a notice to the employee, in person or by certified or registered mail, return receipt requested, explaining the employee's rights and responsibilities concerning change of physician. If the employee is not furnished a copy of the notice, the change-of-physician rules do not apply. Ark. Code Ann. § 11-9-514(c)(2). In Delargy , this court found there was insufficient evidence to support the Commission's finding that appellant received notice of the change-of-physician rule when the form AR-N was not in the record and the claimant merely testified that she had read and signed the form. 2014 Ark. App. 499, 442 S.W.3d 889. There was no evidence that she "received" the form. Id. at 3, 442 S.W.3d at 891.
We hold that the circumstances here are unlike Delargy and that there is substantial evidence to support the Commission's finding that Fuller received a copy of the form AR-N. A copy of Fuller's form AR-N is in the record bearing Fuller's signature. Even though Fuller testified that he did not remember receiving a copy of the form, Duerr testified that it is the common practice of his office to provide an injured employee a copy of form AR-N and that he was certain Fuller received a copy of the form in this case. Once again, it is the Commission's duty to make credibility determinations. Searcy , 82 Ark. App. 69, 110 S.W.3d 306. Accordingly, the circumstances here are unlike Delargy , and we affirm on this point.
We also must address Pope County's motion for attorney's fees and costs associated with its supplemental abstract, which was submitted with this case. Under Arkansas Supreme Court Rule 4-2(b)(1), we have the authority to make such an award to compensate the appellee for its supplementation if we determine that the appellant's abstract and addendum are deficient. In this case, we find an award of fees and costs is unwarranted. We therefore deny the motion.
Affirmed; motion denied.
Gruber, C.J., and Klappenbach, J., agree. | [
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KENNETH S. HIXSON, Judge
This is a combined appeal from an order terminating parental rights. Appellant Jonathan Harris appeals from the termination of his parental rights to his son, M.H., who was born on 12/16/2014. Appellant Kelvin Rasheed Willis (hereinafter, Kelvin Rasheed Willis shall be referred to as "Rasheed") appeals from the termination of his parental rights to his daughter, K.W., who was born on 4/8/2016. The mother of both children is Taniah Cotton.
Taniah's parental rights were also terminated, but she has not appealed.
In his appeal, Jonathan challenges the sufficiency of the evidence, arguing that there was insufficient proof of statutory grounds and insufficient proof that termination of his parental rights was in his child's best interest. In Rasheed's appeal, he also challenges the sufficiency of the evidence as to the statutory grounds found by the trial court and the best interest of his child. In addition, Rasheed argues that the trial court erred in proceeding on the termination petition because he was not appointed counsel until after the petition to terminate was filed, and also that he was denied basic due process from the outset of the case. We affirm the termination of both Jonathan's and Rasheed's parental rights.
We review termination-of-parental-rights cases de novo. Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851. At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341 (Repl. 2015); M.T. v. Ark. Dep't of Human Servs. , 58 Ark. App. 302, 952 S.W.2d 177 (1997). Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Anderson v. Douglas , 310 Ark. 633, 839 S.W.2d 196 (1992). The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep't of Human Servs. , 96 Ark. App. 247, 240 S.W.3d 626 (2006).
This case was initiated by appellee Arkansas Department of Human Services (DHS) when it filed a petition for emergency custody of M.H. on June 1, 2015. At the time the petition was filed M.H.'s father, Jonathan, was incarcerated after having been recently convicted of delivery of marijuana and sentenced to two years in prison followed by a four- year suspended imposition of sentence. An attached affidavit of a family service worker stated that DHS had removed M.H. from his mother's custody based on the mother's history with drugs, multiple arrests for prostitution, homelessness, and failure to accept DHS services. On the same day the petition was filed, the trial court entered an ex parte order for emergency custody of M.H.
With respect to M.H., a probable-cause order was entered on July 2, 2015, and an adjudication order was entered on November 10, 2015. The adjudication order adjudicated M.H. dependent-neglected and set the case goal as reunification.
In a review order dated November 18, 2015 (but not filed until April 12, 2016) the trial court found that M.H.'s mother had complied with none of the case plan, had not remained clean and sober, and had not resolved her criminal troubles. The review order noted that Jonathan had been released from prison on November 4, 2015, was currently living in a halfway house, and was to be discharged from the halfway house in January 2016. The trial court ordered Jonathan to comply with the conditions of his parole and to contact DHS to be assessed for services upon his release from the halfway house.
While the case involving Jonathan and M.H. was proceeding, the case involving K.W. commenced. On April 11, 2016, DHS filed a petition for emergency custody of K.W. The attached affidavit stated that K.W.'s mother (also the mother of M.H.) had tested positive for drugs throughout her pregnancy, that she was positive for methadone at the time of K.W.'s birth three days earlier, and that an emergency hold of the child was taken at the hospital due to newborn/illegal-substance exposure. The petition stated that the mother was married to Rasheed Wilson and that she identified him as K.W.'s father. The petition stated further that the mother denied knowledge of Rasheed's whereabouts and that, despite reasonable diligence, DHS was unable to ascertain Rasheed's whereabouts or address. On the same day the petition was filed, the trial court entered an ex parte order for emergency custody of K.W. In a probable-cause order dated April 13, 2016 (but not filed until May 12, 2016) the trial court found that the whereabouts of Rasheed Wilson were unknown, and also that the whereabouts of Jonathan Harris were unknown.
On July 25, 2016, the trial court entered an adjudication order and permanency planning order. In that order, K.W. was found to be dependent-neglected. The trial court stated in the order that K.W. was just over a month old at the time of the hearing (which was held on May 11, 2016) and remained hospitalized receiving treatment for methadone withdrawal. The trial court stated that K.W.'s birth certificate reflected that Kelvin Rasheed Willis was her father, and that a marriage license showed him to be married to K.W.'s mother. The style of the case was modified to identify K.W.'s father by his correct name of Kelvin Rasheed Willis instead of Rasheed Wilson. With regard to Jonathan, the trial court stated that he had been ordered to notify DHS upon his release from the halfway house, that he was released from the halfway house in January 2016, but that he did not contact DHS until May 1, 2016. Jonathan had failed to appear at the hearing despite having notice. The trial court found that the children's mother had not complied with the case plan and that her whereabouts were unknown. The trial court relieved DHS of providing further services to the mother or Jonathan and stated that, unless the whereabouts of Rasheed were ascertained, DHS was unable to provide services to him. The permanency plan for M.H. was termination and adoption, and the permanency plan for K.W. was reunification with the concurrent goal of termination and adoption.
DHS filed a petition to terminate the parental rights of Jonathan, Rasheed, and the mother, Taniah Cotton, on August 22, 2016. A review hearing was held on August 24, 2016, wherein Rasheed appeared represented by counsel, with Rasheed having been brought there from a local detention facility. In the review order, filed later on October 4, 2016, the trial court stated that Rasheed had been arrested on charges of forgery and for violating the terms of his suspended sentences. With regard to Jonathan, the trial court found that he was incarcerated with an expected release date of August 31, 2016. In the review order, the trial court noted that it had appointed counsel for both Rasheed and Jonathan.
The termination hearing was held on December 2, 2016. Jonathan did not appear at the termination hearing but was represented by counsel. Rasheed, who was still incarcerated, appeared at the hearing represented by counsel.
On March 28, 2017, the trial court entered an order terminating the parental rights of Jonathan, Rasheed, and the children's mother, Taniah Cotton. The trial court found by clear and convincing evidence that termination of parental rights was in both children's best interest, and the court specifically considered the likelihood that the children would be adopted, as well as the potential harm of returning them to the custody of their parents as required by Arkansas Code Annotated section 9-27-341(b)(3)(A)(i) & (ii). With respect to both Jonathan and Rasheed, the trial court found clear and convincing evidence of the following three statutory grounds under subsection (b)(3)(B):
(iv) A parent has abandoned the juvenile.
....
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent.
....
(ix)(a) The parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to:
(3)(A) Have subjected any juvenile to aggravated circumstance.
(B) "Aggravated circumstances" means:
(i) ... [A] determination has been made by a judge that there is little likelihood that services to the family will result in successful reunification.
With respect to Jonathan, the trial court found clear and convincing evidence of the following additional ground:
(i)(b) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home of the noncustodial parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that prevented the child from safely being placed in the parent's home, the conditions have not been remedied by the parent.
In the termination order, the trial court found that none of the parents had shown the slightest inclination to accept services or rehabilitate himself or herself. With respect to Jonathan, the trial court found that he had outstanding warrants. The trial court stated that Jonathan had numerous opportunities to come forward but had failed to do so in any meaningful way. Jonathan failed to make himself available to DHS to receive services offered, and he never visited his child. With respect to Rasheed, the trial court noted that he had a significant criminal history and was incarcerated. The trial court found that Jonathan and Rasheed had not visited the juveniles at all.
Brittany Harp, the DHS caseworker assigned to this case, testified at the termination hearing. She recommended termination of parental rights as to all three parents. Ms. Harp stated that both children are adoptable, and that she did not think waiting until the parents either get out of jail or complete services was in the best interest of the juveniles. Ms. Harp testified that Jonathan had not visited his child at all. Jonathan was supposed to have contacted DHS when he was released from a halfway house in January 2016 but made no contact until several months later. According to Ms. Harp, Jonathan did contact DHS a couple of times after that but did not avail himself of any services.
Regarding Rasheed, Ms. Harp testified that Rasheed has a lengthy criminal history and was currently incarcerated. On cross-examination, Ms. Harp acknowledged that no one had ever contacted Rasheed about a case plan or provided him with any information about what he needed to do to try and work toward gaining custody of his child while he was in jail. Ms. Harp did not know whether Rasheed visited K.W. in the hospital after her birth while the child was going through withdrawal treatment, but she stated that after K.W. was released from the hospital Rasheed never called to check on her or set up visitation.
Rasheed testified that he has a significant criminal history for which he remained on multiple suspended impositions of sentences. Rasheed testified that he was at the hospital when K.W. was born, and that he had visited her at the hospital after that, but that he was arrested in May 2016 (about a month after K.W.'s birth) and has been incarcerated since then. Rasheed stated that he was charged with theft by receiving and fraudulent use of a credit card, for which he was awaiting trial. Rasheed stated that he was confident that he would beat these charges because the photograph of the suspect was not him. Rasheed also stated that there was a petition to revoke his suspended sentences based on the current criminal charges, as well as an alleged battery committed while he was in jail, and nonpayment of fines. Rasheed admitted that he had failed to pay fines in violation of his suspended sentences. Rasheed testified that if he gets out of jail he will have a job and a place to live with a family member. Rasheed indicated that he had not had further contact with K.W. due to his incarceration. Rasheed asked the trial court to keep his daughter in foster care until he could be released from jail and have a chance to demonstrate stability.
We first address Jonathan's argument on appeal, which is that the trial court clearly erred in its finding that DHS proved statutory grounds necessary to terminate his parental rights, and also that there was insufficient evidence that termination was in M.H.'s best interest. As to statutory grounds, Jonathan contends that because he was incarcerated throughout the case he did not abandon his child. With respect to the remaining grounds found by the trial court, Jonathan argues that none of these support termination because he was never included in the case plan and DHS failed to provide him with services. In arguing that termination was not in his son's best interest, Jonathan does not contest the adoptability finding by the trial court, but asserts that there was no evidence of potential harm because DHS did nothing to ascertain whether he could safely parent the child.
Only one ground is necessary to terminate parental rights. Wafford v. Ark. Dep't of Human Servs. , 2016 Ark. App. 299, 495 S.W.3d 96. We hold that the trial court did not clearly err in finding that Jonathan had subjected M.H. to aggravated circumstances, meaning that there is little likelihood that services to the family will result in successful reunification, and we limit our discussion to that statutory ground.
Although Jonathan states in his brief that he was incarcerated throughout the case, the record shows otherwise. Jonathan was released from a halfway house in January 2016 with instructions to contact DHS to be assessed for services, and he failed to make such contact until several months later in May 2016. Despite being apprised of the May 11, 2016 review hearing, Jonathan failed to attend that hearing. Although Jonathan was incarcerated again later in the case, he was released from incarceration prior to the termination hearing but failed to attend that hearing as well. Testimony of the DHS caseworker indicated that Jonathan had contacted DHS in September 2016 but appeared unwilling to avail himself of services and had no contact thereafter.
From the record presented, we find no error in the trial court's determination that there was little likelihood that services to Jonathan would result in successful reunification. In this case, Jonathan was out of jail for several months and showed little or no interest in cooperating with DHS or visiting his child. Although Jonathan contends that DHS failed to offer meaningful services, a finding of aggravated circumstances does not require that DHS prove that meaningful services toward reunification were provided. See Draper v. Ark. Dep't of Human Servs. , 2012 Ark. App. 112, 389 S.W.3d 58. In light of Jonathan's demonstrated lack of interest in reunifying with his daughter, we conclude that this statutory ground was sufficiently satisfied.
We further conclude that the trial court did not clearly err in finding that termination of Jonathan's parental rights was in M.H.'s best interest. The potential harm to a child if custody is returned to the parent is a factor to be considered when making a best-interest determination, but a specific potential harm does not have to be identified or proved by clear and convincing evidence. Ware v. Ark. Dep't of Human Servs. , 2016 Ark. App. 480, 503 S.W.3d 874. The potential-harm evidence, moreover, must be viewed in a forward-looking manner and considered in broad terms. Samuels v. Ark. Dep't of Human Servs. , 2014 Ark. App. 527, 443 S.W.3d 599. The testimony in this case showed that M.H. was adoptable and that Jonathan had no contact with him during the eighteen months between the child's removal and the termination hearing, which Jonathan did not attend. Having concluded that there was sufficient evidence to support a statutory ground and the best interest of the child, we affirm the termination of Jonathan's parental rights.
We now turn to Rasheed's appeal of the termination of his parental rights, wherein he challenges the sufficiency of the evidence supporting termination. Rasheed argues that DHS failed to prove any of the statutory grounds alleged in the petition, and that the trial court clearly erred in finding that termination was in K.W.'s best interest. However, we disagree.
As we stated previously, only one ground is necessary to terminate parental rights. Wafford , supra. We hold that the trial court did not clearly err in finding that Rasheed had subjected K.W. to aggravated circumstances because there is little likelihood that services to the family will result in successful reunification. Thus, we affirm Rasheed's termination based on that ground.
The evidence showed that K.W. was born with drugs in her system and remained hospitalized for more than a month. Rasheed was arrested about a month after the birth of the child. While Rasheed claimed in his testimony that he had visited his daughter in the hospital before his incarceration, the trial court specifically found in the termination order that Rasheed had not visited his child at all. Credibility determinations in termination-of-parental-rights cases are left to the factfinder. Villaros v. Ark. Dep't of Human Servs. , 2016 Ark. App. 399, 500 S.W.3d 763. Moreover, the evidence demonstrated that Rasheed had a lengthy criminal history including felony convictions for commercial burglary, theft of property, theft by receiving, possession of illegal drugs, and possession of drug paraphernalia. Rasheed remained on suspended sentences for these offenses, and at the time of the termination hearing he was incarcerated awaiting trial on new felony charges. In addition, there was a petition to revoke his suspended sentences based on additional criminal activity as well as failure to pay fines, which he admittedly failed to pay. The trial court stated that the best predictor of future behavior is past behavior, and in light of Rasheed's significant criminal history and current incarceration we cannot say the trial court clearly erred in finding that there was little likelihood that services to Rasheed would result in successful reunification. Although Rasheed points out that he was not offered DHS services, we reiterate that a finding of aggravated services does not require that DHS prove that meaningful services were provided. See Draper , supra. On this record, we affirm the trial court's finding that Rasheed had subjected K.W. to aggravated circumstances.
Rasheed also argues that termination of his parental rights was not in his child's best interest, but we disagree for much of the same reasons supporting the statutory ground. Because of Rasheed's persistent criminal troubles, there would be potential harm to the health and safety of the child if placed in his custody. Moreover, there was testimony that K.W. is adoptable. We hold that the trial court did not clearly err in finding that termination of Rasheed's parental rights was in K.W.'s best interest.
Finally, Rasheed claims on appeal that he was entitled to counsel at the outset of the dependency-neglect proceedings. Arkansas Code Annotated section 9-27-316(h)(1) provides, in pertinent part:
(h)(1)(A) All parents and custodians have a right to counsel in all dependency-neglect proceedings.
(B) In all dependency-neglect proceedings that set out to remove legal custody from a parent or custodian, the parent or custodian from whom custody was removed shall have the right to be appointed counsel, and the court shall appoint counsel if the court makes a finding that the parent or custodian from whom custody was removed is indigent and counsel is requested by the parent or custodian.
(C) Parents and custodians shall be advised in the dependency-neglect petition or the ex parte emergency order, whichever is sooner, and at the first appearance before the court, of the right to counsel and the right to appointed counsel, if eligible.
(D) All parents shall have the right to be appointed counsel in termination of parental rights hearings, and the court shall appoint counsel if the court makes a finding that the parent is indigent and counsel is requested by the parent.
We agree that, because Rasheed was married to K.W.'s mother and had legal custody of K.W., he was entitled to counsel under subsection (B) above.
However, in this case when the child was taken into DHS custody, K.W.'s mother incorrectly identified K.W.'s father as Rasheed Wilson instead of Kelvin Rasheed Willis. This was reflected in both the emergency-custody order and the probable-cause order, and because DHS did not have Rasheed's correct identity, it was unable to locate him or advise him of his right to counsel. The subsequent adjudication order and permanency-planning order correctly identified K.W.'s father as Rasheed Willis but noted that Rasheed's whereabouts were unknown so DHS services could not be provided. Shortly thereafter, however, Rasheed was located and counsel was appointed to represent him at the first opportunity. Rasheed was represented by counsel at the review hearing as well as at the termination hearing. In Briscoe v. Arkansas Department of Human Services , 323 Ark. 4, 912 S.W.2d 425 (1996), the supreme court held that the trial court erred in not granting previous requests to appoint counsel, but held that the error was harmless because the final termination hearing aired all of the evidence presented at the hearings leading up to the termination hearing. In Briscoe , the supreme court noted that the parent was represented at the termination hearing and given an opportunity to challenge the evidence against her and to present evidence on her own behalf with the full assistance of counsel. In the present case, the trial court never denied any request by Rasheed for counsel, and the trial court appointed counsel for Rasheed at the earliest opportunity. We hold, under these circumstances, that Rasheed was not deprived of his right to assistance of counsel prior to the decision to terminate his parental rights.
Finally, we observe that under this point Rasheed also makes a brief argument contending he was denied due process. However, no specific due-process argument was raised below, and therefore this point is not preserved for review. See Maxwell v. Ark. Dep't of Human Servs. , 90 Ark. App. 223, 205 S.W.3d 801 (2005) (holding that we will not consider issues raised for the first time on appeal, even constitutional ones).
For the reasons stated herein, we affirm the termination of Jonathan's parental rights and we affirm the termination of Rasheed's parental rights.
Affirmed.
Gruber, C.J., and Murphy, J., agree.
Jonathan was initially identified only as the putative father, but subsequent DNA testing confirmed him to be the father of M.H., as reflected in a review order.
The mother identified the father of K.W. as Rasheed Wilson. Several months later, it was determined that the actual name of the father was Kelvin Rasheed Willis, not Wilson.
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ROBIN F. WYNNE, Associate Justice
James Scott Adams challenges the decision of the State Board of Law Examiners (Board) finding that he is procedurally barred from pursuing his petition for readmission to the Bar of Arkansas. Because this case arises under this court's power to regulate the practice of law, our jurisdiction is proper pursuant to Arkansas Supreme Court Rule 1-2(a)(5) (2017). We affirm the decision of the Board.
Adams was admitted to the practice of law in Arkansas in 1981, with Arkansas Bar number 81001. He served as a district judge in Conway County from 1988 until 2010. In June 2010, Adams filed a petition in this court seeking to surrender his law license. In his petition, Adams acknowledged numerous complaints filed against him by the Office of Professional Conduct, as well as a new grievance filed by a client, and stated in part
In order to avoid the expense, distress and embarrassment of addressing [these] matters, which have great potential to place me in the position of defending a disbarment proceeding, it is my considered decision to voluntarily petition this Court for the surrender of my license to practice law in the State of Arkansas.
....
All statements made in this Petition are true and correct. In order to avoid unnecessary proceedings, I have decided to voluntarily offer the surrender of my Arkansas law license. This surrender is freely and voluntarily made. I have not been coerced nor intimidated into surrendering my license, nor have I been made any promise of benefit nor given any inducement whatsoever to do so. I am fully aware of the implications of this surrender, and understand that this surrender is unconditional. I am aware that I cannot be readmitted to the Bar of Arkansas except upon application made to the State Board of Bar Examiners in accordance with the Rules Governing Admission to the Bar, or any successor rules, and pursuant to the restrictions of Section 24 of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law (2002) ("Procedures") or any successor rules.
On August 2, 2010, on recommendation of the Committee on Professional Conduct, this court accepted Adams's petition to surrender, in lieu of potential disbarment proceedings, his license to practice law in Arkansas. In re Adams , 2010 Ark. 318, 2010 WL 3611744 (per curiam).
In September 2016, Adams filed an application with the Board for readmission to the Bar of Arkansas. As part of his application, Adams stated that he had a severe problem with alcohol in the years leading to the surrender of his law license, and that he has not used alcohol since July 2010. The chair of the Board issued an order determining that Adams is procedurally barred from pursuing his petition for readmission because the surrender of his license was based on violations of Arkansas Rule of Professional Conduct 8.4(c), which provides that it is professional misconduct for a lawyer to engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. Under section 24(B)(3) of the Arkansas Supreme Court Procedures Regulating Professional Conduct of Attorneys at Law, "application for readmission to the Bar of Arkansas shall not be allowed [if] ... [a]ny of the grounds found to be the basis of a disbarment or any grounds presented in a voluntary surrender of law license are of the character and nature of conduct that reflects adversely on the individual's honesty or trustworthiness, whether or not the conviction of any criminal offense occurred." Therefore, Adams was found to be ineligible to apply for readmission. Adams appeals from that order.
This court has the express authority to regulate the practice of law under amendment 28 to the Arkansas Constitution, and the purpose of this amendment is to protect the public and maintain the integrity of the courts and the honor of the profession. In re Haynes , 2013 Ark. 102, 426 S.W.3d 411, 413 (citing In re Madden , 2012 Ark. 279, 423 S.W.3d 39 ). Once a lawyer has lost his or her license to practice law, whether through surrender or disbarment, there is a presumption against readmission. Id. The protection of the public and the honor and integrity of the profession have long been the principal criteria in determining whether a person should be admitted or readmitted to the bar. Redden v. Ark. State Bd. of Law Exam'rs , 371 Ark. 584, 589, 269 S.W.3d 359, 362 (2007).
Adams argues on appeal that the Arkansas State Board of Law Examiners clearly erred in denying his "Petition for Reinstatement" in that the "Finding and Order" of the chairman was arbitrary. He admits that the surrender of his law license was based on several complaints that resulted in findings that he had violated Arkansas Rule of Professional Conduct 8.4(c). However, Adams contends that, in light of previous cases, the finding of the Board in the present case was clearly erroneous and arbitrary. Specifically, he points to In re Petition for Readmission of Harold Wayne Madden to the Arkansas Bar , 2012 Ark. 279, 423 S.W.3d 39, and In Re Jerry Hudson Shepard, Jr., Application for Readmission to the Arkansas Bar , 2015 Ark. 93, 457 S.W.3d 280, the cases cited by the Board in the order finding Adams ineligible. In Madden , the attorney seeking readmission to the bar had pled guilty in federal court to misprision of a felony. The appeal implicated section 24(B)(2), which prohibits application for readmission where "[t]he disbarment or surrender resulted from conviction of a Serious Crime in any jurisdiction other than commission of an offense for which the culpable mental state was that of negligence or recklessness." After the Board concluded, following a hearing, that Madden was eligible for readmission to the Bar because his crime involved the mental state of negligence or recklessness, this court held that readmission was prohibited under Section 24 and that the petition must be denied. In Shepard , this court addressed a situation similar to the one at bar:
The plain language of section 24.B.3 states that an attorney is not eligible for readmission where any of the grounds "presented in a voluntary surrender of law license are of the character and nature of conduct that reflects adversely on the individual's honesty or trustworthiness, whether or not the conviction of any criminal offense occurred." Thus, the question before this court is whether the grounds presented in Shepard's voluntary surrender of his law license bar his readmission. We conclude that they do. By his own admission, Shepard's conduct involved dishonesty and was prejudicial to the administration of justice. We do not need to examine Shepard's rehabilitation efforts because rehabilitation is pertinent only when an attorney is eligible for readmission. See, e.g., In re Haynes, 2013 Ark. 102, 426 S.W.3d 411, 415 (finding that the attorney had presented sufficient proof of rehabilitation after concluding that the attorney was eligible for readmission).
Shepard admitted in his petition to surrender his license that his conduct reflected adversely on his honesty, trustworthiness, or fitness to practice law, that his conduct was dishonest and that his conduct was prejudicial to the administration of justice and, therefore, he is ineligible for readmission based on the plain language of section 24.B.3.
In re Shepard , 2015 Ark. 93, 457 S.W.3d at 285. In addition, Adams cites In re Haynes , 2013 Ark. 102, 426 S.W.3d 411, in which this court granted Haynes's petition to be readmitted to the Bar of Arkansas after Haynes pled no contest to possession of methamphetamine and drug paraphernalia and voluntarily surrendered his law license. In Haynes , the Chair was "unable to determine" whether Haynes was eligible for readmission, and a hearing was held before the Board. After a 7-3 vote in favor of readmission, the petition was presented to this court. We note that Haynes , like Madden , concerns section 24(B)(2) (conviction of a serious crime) and is not directly on point.
Appellant argues that he was entitled to a hearing on his petition, and that the Board, in this case, "assumed the mantle of the Court which clearly, in the past, has decided each case of this nature on its own unique facts." However, the Board in this case has correctly applied this court's interpretation of section 24(B)(3) as set out in Shepard, supra. Adams admits that section 24(B)(3) of the Procedures provides a bar to readmission in instances in which the petitioner has engaged in conduct which adversely reflects on the individual's honesty or trustworthiness, and he admits that he engaged in such conduct. Adams correctly points out that this prohibition in section 24(B)(3) is not found in section 23, which governs reinstatement for attorneys whose law licenses have been suspended. However, pursuant to our precedent and the procedures governing readmission to the bar, we hold that Adams is barred from seeking readmission because his voluntary surrender of his law license was based on violations of Ark. R. Prof'l Conduct 8.4(c).
Affirmed.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
I dissent. The majority has decided that Section 24(B)(3) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law renders Mr. Adams ineligible for readmission to the Arkansas Bar, but by my reading of the applicable rules, the majority is putting the cart before the horse. Mr. Adams has a right to a hearing in front of the Board of Law Examiners before his eligibility for readmission can be decided.
The procedures by which one may be readmitted to the Arkansas Bar are governed by Rule XIII of the Arkansas Rules Governing Admission to the Bar. "The determination of eligibility of every applicant shall be made in accordance with this rule and the burden of establishing eligibility shall be on the applicant." Ark. R. Admis. XIII. Rule XIII goes on to state:
A. Initial Review. Applications for admission, readmission after disbarment or surrender, or reinstatement after suspension pursuant to Rule VII(D) of these rules, shall be reviewed by the Secretary of the Board. Any application which raises questions of eligibility based upon the standards set out in this rule shall be referred to the Chair.
Ark. R. Admis. XIII(A). In this case, it appears undisputed that the Secretary received and reviewed Adams' application for readmission, and that the Secretary then referred Adams' application to the Chair of the Board of Law Examiners.
Rule XIII contemplates three potential outcomes after an application for readmission is referred to the Chair:
The Chair, applying the standards set out in this rule, shall determine whether: the applicant is eligible for admission, readmission, or reinstatement; to recommend the deferral of the admission decision; or, the Chair is unable to determine eligibility for admission, readmission, or reinstatement.
Id.
The first potential outcome is that the Chair can readily determine that "the applicant is eligible for admission, readmission, or reinstatement[.]" Id. Subsection C of Rule XIII addresses this scenario:
C. Decision of Chair-Admission, Readmission, or Reinstatement Granted. In the event the Chair determines that an applicant for admission is eligible, the Chair shall notify the Secretary, who shall certify to the Clerk of the Supreme Court (Clerk) that the applicant is eligible for admission.
...
In the event the Chair determines that an applicant for readmission after disbarment or surrender of license is eligible, the Chair shall so notify the applicant. The applicant will then be required to file a motion with the Arkansas Supreme Court as set forth in paragraph 2 of Section G of this rule. The Chair may condition such readmission upon the applicant taking the examinations as set forth in Rule IX of these rules or its successor rule.
Ark. R. Admis. XIII(C). In this case, the Chair did not determine that Adams was eligible for readmission to the Arkansas Bar; as such, Subsection C is inapplicable.
The second potential outcome is that the Chair "recommend[s] the deferral of the admission decision[.]" Ark. R. Admis.
XIII(A). Subsection D of Rule XIII addresses this scenario:
The Chair shall annually appoint a Deferral of Admission Committee (Committee) composed of three (3) members. The committee members shall serve terms of one year subject to reappointment by the Chair. The Chair shall not be eligible to serve on the committee. The Chair shall designate the Chair of the committee.
In the event the Chair concludes that an applicant by examination might be eligible for admission absent circumstances set out hereafter, then the Chair may defer the eligibility decision and provide the applicant with the alternative of participation in a deferral of admission program (program). The circumstances which might warrant such a deferral are: an applicant currently has a condition or impairment resulting from alcohol or other chemical or substance abuse which currently adversely affects the applicant's ability to practice law in a competent and professional manner.
In such cases, the applicant shall be notified of the Chair's determination by certified, return receipt, restricted delivery mail. The applicant shall have thirty (30) days from receipt of notice in which to advise the Secretary that he or she is agreeable to participating in the program on such terms, and for such period of time, as may be set by the Committee. Failure of the applicant to timely agree to the program shall cause the application to be referred to the Board and processed as set forth in section E of this rule.
In the event an applicant elects the deferral of admission program, the committee shall secure such evidence as may be necessary to establish the terms and duration of the program. Such materials may include: documentary evidence supplied by the applicant; evidence secured by the Secretary; evidence acquired by an informal conference with members of the committee; or such other evidence as the committee may consider necessary to their decision. Prior to establishing the terms and duration of any deferral of admission program, the committee may reject the applicant as a candidate for the program. In such case, the applicant shall then be referred to the Board and processed as set forth in section E of this rule.
In the event the committee accepts the applicant as a participant in the program, then the applicant will sign an agreement with the committee which sets forth the terms and duration of the program. All expenses relating to the program shall be borne by the applicant, and this shall be part of the agreement. In the event the applicant does not sign the agreement within thirty (30) days of notification thereof, the deferral of admission for that applicant shall deem to have been waived. The applicant shall then be referred to the Board for disposition in accord with section E of this rule.
At the conclusion of the deferral period, or anytime prior thereto, the committee shall determine whether the applicant has complied with all terms and conditions of the deferral agreement, and the committee shall so notify the Board. The Board shall then, by majority vote, make a determination as to whether the applicant is eligible for admission. In the event of a favorable Board vote, The Secretary shall then certify to the Clerk that the applicant is eligible for admission.
In the event the Committee determines that the applicant has failed to comply with the terms and requirements of the deferral agreement he or she shall be referred to the full Board for disposition in accord with the provisions of section E of this rule.
Ark. R. Admis. XIII(D). In this case, the Chair did not recommend deferral of Adams' application; as such, Subsection D is inapplicable.
The third and final potential outcome is that "the Chair is unable to determine eligibility for admission, readmission, or reinstatement." Ark. R. Admis. XIII(A). Subsection E of Rule XIII addresses this scenario:
In the event the Chair is unable to determine eligibility of the referred applicant, or in instances where other provisions of this rule mandate referral of the applicant to the Board for determination of eligibility, then the applicant shall be notified of such determination. The applicant shall be advised that he or she has a right to a hearing on the question and the right to be represented by counsel at the expense of the applicant. Such notice shall be sent by certified, return receipt, restricted delivery mail. The applicant shall have thirty (30) days from receipt of the notice to request a hearing. Such request shall be in writing and addressed to the Secretary.
Upon request of the applicant, the Chair shall appoint a hearing panel (panel) from the Board comprised of not less than three members who shall proceed to a hearing as hereafter provided. The Chair shall not be eligible to serve thereon. Absent exigent circumstances, the hearing shall be conducted within 60 days after the Secretary is notified that the applicant requests a hearing. The Chair shall designate a member to serve as Chair of the panel. For good cause shown, the Chair of the panel may grant extensions of time.
...
This panel shall be appointed for the sole purpose of making a full and accurate record of all facts and circumstances affecting the application.
Ark. R. Admis. XIII(E). I feel that Subsection E governs Mr. Adams' case at its current posture, and Subsection E provides that he has a right to a hearing before the Board of Law Examiners.
I understand that Mr. Adams' eligibility for readmission may turn upon the application of Section 24(b)(3), but Rule XIII simply does not contemplate a scenario where one can be denied eligibility for readmission without first being afforded the opportunity to have a hearing and make a record on whatever basis he or she believes he or she should be readmitted. Mr. Adams is asking for such a hearing. Perhaps Mr. Adams would have compelling evidence to put on the record that could warrant his readmission. If he were successful, it would not be the first time someone garnered readmission to the Arkansas Bar when the rules' plain language would appear to bar him or her from readmission. See, e.g. , In re Haynes , 2013 Ark. 102, 426 S.W.3d 411. Because the majority's decision denies Mr. Adams' application for readmission without first affording him the opportunity to have a hearing, I must dissent.
Along with his petition to surrender his license, Adams also resigned his judicial office by letter to the governor. | [
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COURTNEY HUDSON GOODSON, Associate Justice
Appellant Mississippi County, Arkansas ("the County"), appeals from the Mississippi County Circuit Court's order granting appellee City of Blytheville's ("the City") motion for summary judgment. For reversal, the County argues that the circuit court erred (1) by defining the phrase "prisoners of municipalities," for whom the City would owe a daily fee for housing in the County jail pursuant to Arkansas Code Annotated section 12-41-506 (Repl. 2016), as only those detainees charged with violation of a city ordinance; and (2) by applying an offset in the amount of taxes paid under an exclusive jail tax by residents of the City to the calculation of "reasonable expenses" under section 12-41-506. We reverse and remand.
The statute at issue in this appeal, Arkansas Code Annotated section 12-41-506, which is entitled "Municipal Prisoners-Expenses," provides as follows:
(a)(1) In the absence of an agreement on jail costs between a county and all municipalities having law enforcement agencies in the county, the quorum court in a county in this state may by ordinance establish a daily fee to be charged municipalities for keeping prisoners of municipalities in the county jail.
(2) The fee shall be based upon the reasonable expenses which the county incurs in keeping such prisoners in the county jail.
(b)(1) Municipalities whose prisoners are maintained in the county jail shall be responsible for paying the fee established by the quorum court in the county.
(2) When a person is sentenced to a county jail for violating a municipal ordinance, the municipality shall be responsible for paying the fee established by an agreement or ordinance of the quorum court in the county.
(3) Municipalities may appropriate funds to assist the county in the maintenance and operation of the county jail.
(c)(1) Each county sheriff shall bill each municipality monthly for the cost of keeping prisoners in the county jail.
(2) Each county sheriff shall remit to the county treasurer monthly the fees collected under this section, and such fees shall be credited to the county general fund.
(d) Counties shall give priority to in-county municipalities over contracts for out-of-county prisoners.
A brief overview of the relevant history between the parties regarding the payment of jail fees for municipal prisoners pursuant to this statute is necessary to understand the issues presented. In 2001, the Mississippi County Quorum Court enacted ordinance number 0-2001-18, "An Ordinance Establishing Fees for Municipal Prisoners Held in the Mississippi County Jail and For Other Purposes." The Ordinance became effective on February 1, 2002, and stated that, in the absence of a written agreement with a municipality for an appropriation of funds to assist the County in the maintenance and operation of the County jail, a fee of $35 per prisoner shall be charged for any prisoner arrested by any state or municipal law enforcement officer within the geographic boundaries of any city or incorporated town in the County for a violation of any state law or municipal ordinance and presented to the County jail for incarceration. In 2008, Ordinance number 0-2008-13 was passed, increasing the daily fee for municipal prisoners to $55 per day, effective January 1, 2009.
Prior to 2003, the City of Blytheville operated its own municipal jail. After that jail closed in January 2003, the County brought a declaratory-judgment action against the cities of Blytheville, Dell, Gosnell, and Manila seeking to have the circuit court define the term, "prisoners of municipalities," as found in section 12-41-506(a)(1). An order was entered in December 2003 granting the County's petition to define the term to "include persons housed in the county jail by virtue of a pending misdemeanor charge that is pending on a city docket or municipal docket of any court, whereby the fine revenue that would be owed by the prisoner, if convicted, would be paid to the city or the municipality and not to the county." The City of Blytheville dismissed its appeal of this order following the entry of a consent order in a collection action filed by the County against the City for unpaid jail fees. This consent order, which was filed on August 26, 2004, indicated that the parties had agreed to a daily rate of $15 per day for each municipal prisoner, as defined in the 2003 declaratory-judgment action, for a total of $44,805 for the months of November 2003 through June 2004. The order further stated that the parties would renegotiate future daily jail fees in September of each year following the expiration of the current agreement on December 31, 2005.
Subsequent written agreements between the City and the County raised the daily rate for the City's municipal prisoners to $20 for 2006; $30 for 2007-2008; $40 for 2009-2010; $45 for 2011; and $50 for 2012. There were no further written agreements between these parties regarding jail fees after 2012.
In January 2014, the County filed a complaint against the City, alleging that it had not paid a daily fee for its municipal prisoners since January 2013. The County sought judgment for these fees from February 2013 through December 2013, at either the $50 rate previously agreed to by the parties for a total of $275,350, or the $55 rate required by the 2008 Ordinance for a total of $305,090, in addition to amounts for subsequent months and prejudgment interest.
The City filed an answer and a counterclaim in February 2014. The City denied that any prior orders or agreements between the parties defining the term "municipal prisoners" were controlling; instead, the City argued that the prior orders were void or voidable because all necessary or interested parties were not joined. In its counterclaim, the City sought a declaratory judgment that "prisoners of municipalities" and "municipal prisoner" as referenced in section 12-41-506 means "a person arrested and jailed by a municipal officer on a municipal ordinance violation." In addition, the City requested an injunction preventing the County from charging it for the incarceration of persons other than municipal prisoners as defined above. The County answered the counterclaim and affirmatively argued that the City's claims were barred by res judicata and collateral estoppel.
On April 4, 2014, the City filed a motion to join the cities of Dell, Manila, and Leachville, all of whom it alleged had utilized the County jail. The motion was granted by the circuit court, and an amended counterclaim was filed on April 24, 2014, adding these cities as involuntary counterplaintiffs.
The City filed a motion for summary judgment on July 7, 2014. In its motion, the City argued that Arkansas Code Annotated section 12-41-506 defines "prisoners of municipalities" in a way that is inconsistent with the County's application of the definition; that the County had also charged the City in excess of its actual costs for housing municipal prisoners in violation of Arkansas Code Annotated section 12-41-503(d) - (f) ; and that the County's actions in charging varying amounts of jail fees to different entities violated the equal-protection clause of the Arkansas Constitution.
The County filed a cross-motion for summary judgment, asserting that the City was barred by res judicata and collateral estoppel from relitigating the previous definition of "prisoners of municipalities," at least as it relates to misdemeanor prisoners, that was memorialized in the 2003 lawsuit and the 2004 consent order involving both parties. The County also argued that, consistent with this prior definition, with the Attorney General's interpretation of the term, and with the payment of jail fees by other cities in the County, the City should be required to pay, prospectively, jail fees for all prisoners that the City arrests and delivers to the County jail for incarceration from the point of arrest or intake until (1) charging on a felony, (2) sentencing on a misdemeanor, and (3) release on a municipal-ordinance violation. In addition, the County contended that the City had presented no proof to show that the $55 daily fee set by the quorum court was not based on "reasonable expenses" as required by Arkansas Code Annotated section 12-41-506(a)(2). The County attached numerous exhibits to its motion, including an affidavit from the Mississippi County Sheriff that indicated that all cities in the County, with the exception of Blytheville subsequent to February 2013, had paid jail fees in accordance with the County's proposed definition of municipal prisoners. The County also attached a listing, by county, of the State Inmate Cost Per Day reported by the Association of Arkansas Counties and verified by the Division of Legislative Audit. This report indicated that Mississippi County had a verified cost per day for each inmate of $78.67.
In its reply to the County's response, the City continued to argue that there was no rational basis for the disparate treatment between the municipalities in the County and the State, which pays only $28 per day for its prisoners housed in the County jail. The City contended that even if the fees charged by the County's ordinance did not violate the equal-protection clause, the formula for calculating jail fees was unreasonable. The City claimed that by dividing the total jail costs by the number of prisoners, the cities were unfairly required to pay a greater share of prisoner medical costs than the municipal prisoners actually incurred because they spend less overall time in the jail. While the City admitted that there were numerous Attorney General opinions that had attempted to define "prisoners of municipalities," it argued that these opinions were nonbinding precedent and were based on a misreading of the statute. The City requested a declaratory judgment stating that a municipal prisoner is "merely one arrested on a municipal ordinance violation." With regard to the County's res judicata and collateral estoppel argument, the City claimed that the prior declaratory-judgment action and consent judgment were not binding because the County had failed to join the city of Leachville as a party. The City further argued that, even if res judicata and collateral estoppel applied, the facts presented in this case clearly fell under the public-interest exception to the doctrine.
The City of Leachville adopted the City's motion for summary judgment, and a summary-judgment hearing was held on November 23, 2015. The circuit court asked for posthearing briefs on the proper interpretation of the term "prisoners of municipalities," and each party submitted supplemental briefs and responses.
The circuit court entered an order on January 25, 2016, and an amended order on February 1, 2016, finding that the doctrines of res judicata and collateral estoppel did not apply and that even if they did, "there was a clear and convincing need for a new determination of the issue because of the potential adverse impact of the determination on the public interest." The court noted that the outcome of the case could have an effect on counties and cities all over Arkansas. With regard to the interpretation of the phrase "prisoners of municipalities" as found in Arkansas Code Annotated section 12-41-506, the circuit court found that this language was ambiguous. Although it determined that the legislature's intent with respect to the statutory language was unclear, the court concluded that it agreed with the City's proposed definition. The court therefore found that "prisoners of municipalities" are "those persons arrested and jailed for violations of city ordinances." The circuit court granted the City's motion for summary judgment in part but found that an issue of fact remained as to what should be considered in determining the reasonable expenses of the County in housing municipal prisoners.
After further discovery, the City filed a second motion for summary judgment on June 20, 2016. The City contended that, under the circuit court's definition of municipal prisoners, the County had housed only one of the City's prisoners within the three years preceding the lawsuit and that this municipal prisoner had stayed in the County jail for only two days, for a total of $110 in jail fees. The City further asserted that county "jail taxes" were passed in both 1995 and 1998 and that the purpose of these taxes was to assist the County in the operation and maintenance of the County jail. According to the City, the revenue from these sales taxes exceeded what it, or any other municipality in the County, owed in jail fees. Consequently, the City argued that the amount it paid in sales taxes should offset what it owed to the County in fees and that the County should be enjoined from billing any city in the County for municipal jail fees due to this setoff.
The County filed a second cross-motion for summary judgment, arguing that its jail fee was based on reasonable expenses in housing prisoners and attaching a spreadsheet listing the County's jail expenses and revenue for 2012 through 2015.
An affidavit from the office manager for the Mississippi County Sheriff was also attached, along with reports indicating that the cost for inmates in that county from 2012 to 2015 exceeded $55 per day. With regard to the City's setoff argument, the County asserted that the City did not have standing to raise that issue or to take credit for sales taxes paid by third parties. Furthermore, the County argued that even if the City did have standing, there was no authority to support the City's offset theory and that allowing an offset in this case would open the "proverbial floodgates" to attacks on every fee charged by public entities that are funded primarily by tax revenue, such as libraries.
After further responses by each party, the circuit court entered a final order on February 17, 2017, granting in part and denying in part each party's cross-motion for summary judgment. The court ruled that the County's method for calculating the jail fees was reasonable and appropriate. However, the court found that the County must deduct the revenue received from the cities' residents from the 1995 "exclusive" jail tax, but not the 1998 "non-exclusive" jail tax, before calculating the reasonable expenses for holding the cities' prisoners. The circuit court rejected the City's equal-protection argument. The County filed a timely notice of appeal from the circuit court's order.
In its first point on appeal, the County argues that the circuit court erred by defining "prisoners of municipalities" as only those detainees who are charged with violating a municipal ordinance. The County asserts that this interpretation is contrary to the language and intent of Arkansas Code Annotated section 12-41-506, that it is inconsistent with all previous authority interpreting this language, and that it is barred by the doctrines of res judicata and collateral estoppel.
Ordinarily, on appeal from a summary-judgment disposition, we view the evidence in the light most favorable to the party resisting the motion, and any doubts and inferences are resolved against the moving party. Abraham v. Beck , 2015 Ark. 80, 456 S.W.3d 744. However, when the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Id. When parties file cross-motions for summary judgment, as in this case, they essentially agree that there are no material facts remaining and that summary judgment is an appropriate means of resolving the case. Id. As to issues of law presented, our review is de novo. Id.
We first address the County's contention that the circuit court's definition of the term "prisoners of municipalities" is contrary to the circuit court's prior interpretation in the 2003 declaratory-judgment action, as well as the definition incorporated into the parties' 2004 consent order, and that it is therefore barred by res judicata and collateral estoppel. We have held that the concept of res judicata has two facets, one being issue preclusion and the other being claim preclusion. Abraham , supra. Collateral estoppel, also known as issue preclusion, bars relitigation of issues of law or fact that were previously litigated by a party. Id. The following elements are required for collateral estoppel to apply: (1) the issue sought to be precluded must be the same as that involved in the prior litigation; (2) the issue must have been actually litigated; (3) it must have been determined by a valid and final judgment; and (4) the determination must have been essential to the judgment. Id.
The City argued below, and continues to assert on appeal, that the definition of "prisoners of municipalities" in the 2003 declaratory-judgment action and the 2004 consent order does not bind the parties in the current litigation because the City of Leachville, which also uses the County jail, was not a party to the prior actions. As the City contends, when declaratory relief is sought, "all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding." Ark. Code Ann. § 16-111-111(a) (Supp. 2017). See also Files v. Hill , 268 Ark. 106, 594 S.W.2d 836 (1980) (the failure to include in an action a party whose interest would be affected by the proceeding is fatal to a declaratory-judgment action). In addition, while collateral estoppel may be asserted by a stranger to the first judgment or order, it is applicable only when the party against whom the earlier decision is being asserted had a full and fair opportunity to litigate the issue in question in the earlier proceeding. Vibo Corp., Inc. v. McDaniel , 2011 Ark. 124, 380 S.W.3d 411 ; Powell v. Lane , 375 Ark. 178, 289 S.W.3d 440 (2008). The County has not demonstrated that Leachville had notice of or a full and fair opportunity to litigate the definition of "prisoners of municipalities" in the 2003 declaratory-judgment action. Thus, at a minimum, we agree with the City that this prior interpretation is not binding as to Leachville.
The circuit court further found that, even if the elements of res judicata or collateral estoppel had been met, the parties to this proceeding would not be barred from relitigating the meaning of the phrase because of the potential adverse impact on the public interest. While this court has not previously recognized a "public interest" exception to the doctrine of res judicata, other courts have done so. In Van Curen v. Arkansas Professional Bail Bondsman Licensing Board , 79 Ark. App. 43, 84 S.W.3d 47 (2002), our court of appeals held that an exception to res judicata exists when the public's interest in reaching the right result weighs against its application. See also Am. Jur. 2d Judgments § 469 (2018) (even where the threshold elements for application of the defense are met, a court should not apply the doctrine in circumstances where its purpose would not be served or where the public interest requires that relitigation not be foreclosed). Also, in Myers v. State Board of Equalization , 240 Cal.App.4th 722, 192 Cal.Rptr.3d 864 (2015), the court declined to apply res judicata because the issue concerned a pure question of law that affected the public interest. Similarly, here, the interpretation of the statutory term "prisoners of municipalities" is a question of law that affects cities and counties across the state, as well as their citizens. We therefore agree with the circuit court that the public-interest exception applies under the circumstances in this case and that the municipalities involved in the prior litigation are not barred from relitigating the issue.
We next address whether the circuit court erred in its interpretation of the phrase "prisoners of municipalities" as used in Arkansas Code Annotated section 12-41-506. We review issues of statutory interpretation de novo, as it is for this court to determine what a statute means. DeSoto Gathering Co. LLC v. Hill , 2017 Ark. 326, 531 S.W.3d 396. The primary rule of statutory interpretation is to give effect to the intent of the legislature. Keep Our Dollars in Independence Cty. v. Mitchell , 2017 Ark. 154, 518 S.W.3d 64. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. Where the language is plain and unambiguous, this court determines legislative intent from the ordinary meaning of the language used. Valley v. Pulaski Cty. Cir. Ct., Third Div. , 2014 Ark. 112, 431 S.W.3d 916. Statutory language is ambiguous if it is open to more than one construction. Id. When a statute is ambiguous, this court must interpret it according to legislative intent, and our review becomes an examination of the whole act. Id. In addition, we must look at the legislative history, the language, and the subject matter involved. Id. The circuit court was correct in finding that the meaning of the phrase "prisoners of municipalities" as found in section 12-41-506 is not defined in the statute and is ambiguous. However, we disagree with the circuit court's conclusion that the legislature intended for only those detainees who are charged with, or convicted of, violating a municipal ordinance to be included within that term. While this court has not had an occasion to interpret this statutory language, the Attorney General has addressed the meaning of this phrase on multiple occasions and, since at least 1982, has consistently defined "prisoners of municipalities" to include those persons who are arrested by city police for violation of a municipal ordinance or Arkansas statutory law. See Op. Ark. Att'y Gen. No. 2009-043; Op. Ark. Att'y Gen. No. 2004-303; Op. Ark. Att'y Gen. No. 97-299; Op. Ark. Att'y Gen. No. 97-006; Op. Ark. Att'y Gen. No. 96-249; Op. Ark. Att'y Gen. No. 91-409; Op. Ark. Att'y Gen. No. 91-040; Op. Ark. Att'y Gen. No. 84-154; Op. Ark. Att'y Gen. No. 82-104. Furthermore, for those prisoners who are arrested by city police for a violation of Arkansas statutory law, the Attorney General has opined that they remain municipal prisoners until either felony charges are filed against them or they are convicted and sentenced on a misdemeanor offense. See, e.g. , Op. Ark. Att'y Gen. No. 2009-043 (disagreeing with change in interpretation set forth in Op. Ark. Att'y Gen. 2001-359 and returning to its traditional definition of a municipal prisoner as including those who are arrested by a city officer on felony charges until such time as the prisoner is formally charged); Op. Ark. Att'y Gen. No. 97-299; Op. Ark. Att'y Gen. No. 91-409. Municipal prisoners who are convicted and sentenced to the County jail for a violation of a municipal ordinance continue to be the responsibility of the City pursuant to the plain language of Arkansas Code Annotated section 12-41-506(b)(2).
The Attorney General has explained that section 12-41-506 was an attempt by the legislature to recognize that a county's reception and retention of city prisoners benefits those municipalities holding its prisoners within a county jail. Op. Ark. Att'y Gen. No. 84-154. In addition to prosecuting municipal violations, city attorneys also have the authority to prosecute misdemeanor violations of state law that occur within a city's limits and to collect the resulting fine revenue, while they have no authority to file felony charges. See Archer v. Benton Cty. Cir. Ct. , 316 Ark. 477, 872 S.W.2d 397 (1994) ; Ark. Code Ann. § 16-21-115 (Repl. 2016); Ark. Code Ann. § 16-21-150 ; Op. Att'y Gen. No. 2004-303; Op. Att'y Gen. No. 95-235; Op. Att'y Gen. No. 91-409. Instead, it is counties that principally bear the cost of felony prosecutions, and the Attorney General has asserted that the counties should therefore assume responsibility for the cost of imprisonment once felony charges are filed. Ark. Code Ann. § 16-92-109 ; Op. Att'y Gen. No. 91-409.
While Attorney General opinions are not binding authority on this court, White Cty. v. Cities of Judsonia, Kensett & Pangburn , 369 Ark. 151, 251 S.W.3d 275 (2007), we find that the Attorney General's interpretation of the term "prisoners of municipalities" is persuasive. Furthermore, it is significant that there has been no legislative clarification or amendment of this statutory language following the many Attorney General opinions over the last thirty-five years that have interpreted this phrase in a consistent manner. See Op. Ark. Att'y Gen. No. 2009-043; Op. Ark. Att'y Gen. No. 2004-303; see also Jackson v. Blytheville Civ. Serv. Comm'n , 345 Ark. 56, 43 S.W.3d 748 (2001) (noting in interpreting statute that there had been no legislative clarification following an Attorney General's opinion on the issue). Accordingly, we agree with the County that the term "prisoners of municipalities" as used in section 12-41-506 includes those offenders who are arrested by municipal law enforcement officers and delivered to the county jail for incarceration, from the point of intake until (a) charging on a felony offense; (b) sentencing on a misdemeanor offense; and (c) release on a municipal-ordinance violation. We therefore reverse the circuit court's order granting summary judgment to the City on this issue.
In the County's second point on appeal, it argues that the circuit court erred by applying an offset in the amount of taxes paid under the 1995 "exclusive" jail tax by residents of the City to the calculation of "reasonable expenses" under Arkansas Code Annotated section 12-41-506(a)(2). The County contends that the City does not have standing to take credit for payments made by third parties that are not part of this litigation. Alternatively, even if the City does have standing to raise this issue, the County asserts that there is no statutory authority to support such an offset.
We first address the issue of standing, as this is a threshold question. Landers v. Stone , 2016 Ark. 272, 496 S.W.3d 370. We have held that only a claimant who has a personal stake in the outcome of a controversy has standing. Nelson v. Ark. Rural Med. Practice Loan & Scholarship Bd. , 2011 Ark. 491, 385 S.W.3d 762 ; Pulaski Cty. v. Ark. Democrat-Gazette , 371 Ark. 217, 264 S.W.3d 465 (2007). The question of standing is a matter of law for this court to decide. Nelson , supra.
The City requested that the circuit court offset any municipal prisoner fees that the City owed to the County by the amount of sales taxes paid by Blytheville citizens pursuant to the jail tax. However, the City has not alleged or demonstrated that it has been injured by paying the jail tax, and no entities or persons who have paid this sales tax, such as the citizens of Blytheville, were joined in this suit. Thus, we agree with the County that the City lacks standing to raise this issue. The circuit court's finding that the City can be given credit for a countywide jail tax paid by its residents, who are also residents of the County itself, is illogical and is not authorized by the provisions in section 12-41-506. Accordingly, we reverse the circuit court's order granting a setoff of any prisoner fees owed by the City to the County, and we remand for further proceedings.
Reversed and remanded.
Hart, J., concurs in part and dissents in part.
I concur in the disposition of Mississippi County's (the County) second point regarding the circuit court's finding that Blytheville was entitled to a setoff in the amount paid by Blytheville residents under the "exclusive jail tax," the 1995 tax that supports only the county jail. However, I disagree that the issue should be disposed of on the standing issue. Blytheville's obligation to pay for "municipal prisoners" is not speculative or academic-it exists pursuant to the dictates of Arkansas Code Annotated section 12-41-506.
That the circuit court erred in awarding Blytheville a setoff. The plain language of section 12-41-506 states:
(2) When a person is sentenced to a county jail for violating a municipal ordinance, the municipality shall be responsible for paying the fee established by an agreement or ordinance of the quorum court in the county.
Ark. Code Ann. § 12-41-506(a)(2) (Repl. 2016). In accordance with section 12-41-506(a), the County's quorum court passed an ordinance setting the per diem rate for housing municipal prisoners. The plain wording of the statute is conclusive on this issue. Accordingly, I concur that the circuit court should be reversed on this point.
I disagree with the disposition of the County's first point. I first note that I am persuaded by and endorse the majority's very thorough treatment of the County's res judicata/collateral estoppel argument. This rationale obviates the majority's subsequent dicta in which it purports to recognize the "public-interest exception" to res judicata.
I do not agree with the balance of the majority's analysis of this argument, however. In my view, the circuit court's construction of section 12-41-506 is eminently correct. The circuit court found that "prisoners of municipalities" meant "those persons arrested and jailed for violations of city ordinances." This definition is firmly grounded in the plain language of section 12-41-506, and it does not add the words that the County requests. Conversely, the definition espoused by the County is:
[A]ll prisoners charged on the City docket and delivered to the county jail for incarceration, from the point of arrest/intake (a) until charging on a felony, (b) until sentencing on a misdemeanor, and until release on a municipal ordinance violation.
The statute's only reference to who might be a "municipal prisoner" is found in section 12-41-506 (b)(1)(2), which states, "When a person is sentenced to a county jail for violating a municipal ordinance, the municipality shall be responsible for paying the fee established by an agreement or ordinance of the quorum court in the county." This "fee" is the same fee that is referenced in section 12-41-506(a). However, noticeably absent from section 12-41-506 is any mention of "City docket," "charging," "felonies," "misdemeanors," and "arrests/intake." Accordingly, essentially adopting the County's proposed definition of "municipal prisoner" is nothing more than legislating from the bench. If the General Assembly had intended "municipal prisoner" to be defined in this way, it could easily have adopted this language.
Finally, the majority's reliance on attorney general opinions is troublesome. It indicates a misunderstanding of the nature of these opinions. Attorney general opinions are not judicial opinions. Attorney general opinions are merely legal advice given in response to particular questions submitted by a state government official. They can be tainted by political bias. Furthermore, they are not tempered in the crucible of judicial review. I think it is likely that the apparent similarity in the opinions may be explained as a product of long-serving staff rather than legal analysis performed seriatim. Accordingly, I do not find those opinions to be persuasive. In short, repeating faulty analysis several time does not make it correct.
For the foregoing reasons, I would affirm the circuit court in part and reverse it in part. Accordingly, I concur in part and dissent in part.
The Cities of Dell, Manila, and Leachville were also joined by the City of Blytheville as involuntary counterplaintiffs and are named in the County's notice of appeal.
The parties agreed that the city of Gosnell had not housed any of its municipal prisoners in the County jail during the relevant time period.
The 1995 Mississippi County ordinance, referred to as the "exclusive" jail tax by the circuit court, provided for a one-fourth of 1 percent tax on gross receipts from retail sales to be collected "for the purpose of constructing, operating and maintaining jail facilities" in the County. The 1998 tax, which was referred to by the court as the "non-exclusive" jail tax, provided for a one-fourth of 1 percent sales tax, with one half of the revenue to go to library facilities and the other half to go to "the operation and maintenance of court facilities, jails, juvenile facilities, sheriff's stations, apparatus, and facilities."
In City of Pine Bluff v. Jones , 370 Ark. 173, 258 S.W.3d 361 (2007), this precise issue was presented; however, we held that the declaratory-judgment action was moot in light of the parties' settlement agreement, and we did not address the merits of the case. | [
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JOSEPHINE LINKER HART, Associate Justice
Appellant Rodney Dewayne Johnson appeals to this court from the denial by the Lee County Circuit Court of his pro se petition for writ of habeas corpus filed pursuant to Arkansas Code Annotated sections 16-112-102 to -123 (Repl. 2016). Johnson, who entered pleas of guilty as a habitual offender in 1987 in the Pulaski County Circuit Court to multiple felony charges, argues four grounds for reversal of the circuit court order in his brief: (1) that the trial court erred in accepting his plea of guilty to the charge of rape because he was innocent of the offense; (2) that the trial court determined that he was a habitual offender without proof that he had been found guilty of the prior offenses used to establish his status as a habitual offender; (3) that the judgment-and-commitment order in his case is facially invalid because he was "convicted of crimes he was not convicted of," i.e. , that the judgment in his case stated that he was guilty of rape when it was not established that he had penetrated the victim, and because the judgment cited "Habitual Offender 5-4- 501," and he was not charged under that statute; and (4) that the circuit court did not address three of the grounds for relief raised in his habeas petition. Because Johnson did not state a ground for the writ in his petition, the circuit court's order is affirmed.
A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Hobbs v. Gordon , 2014 Ark. 225, 434 S.W.3d 364. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Smith v. Kelley , 2016 Ark. 307, 2016 WL 4919890.
Johnson's first three grounds for reversal of the circuit court order pertain to issues raised in Johnson's habeas petition that are clearly outside the scope of the writ. A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a trial court lacks jurisdiction over the cause. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. Under our statute, a petitioner for the writ who does not proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is being illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016); Barber v. Kelley , 2017 Ark. 214, 2017 WL 2473267. Unless the petitioner in proceedings for a writ of habeas corpus can show that the trial court lacked jurisdiction or that the judgment-and-commitment order was invalid on its face, there is no basis for a finding that a writ of habeas corpus should issue. Russell v. Kelley , 2016 Ark. 224, 2016 WL 3131007 ; Fields v. Hobbs , 2013 Ark. 416.
When a defendant enters a plea of guilty, the plea is his trial. Barber , 2017 Ark. 214 ; Crockett v. State , 282 Ark. 582, 669 S.W.2d 896 (1984). A habeas corpus proceeding does not afford a prisoner an opportunity to retry his case. Hobbs v. Turner , 2014 Ark. 19, 431 S.W.3d 283. Accordingly, Johnson's claims of error by the trial court that accepted his plea of guilty were not within the purview of the remedy because the writ will not be issued to correct errors or irregularities that occurred in a guilty-plea proceeding. Barber , 2017 Ark. 214. Claims of an involuntary plea or of improper plea procedures do not raise a question of a void or illegal sentence that may be addressed in a habeas proceeding. Id.
Johnson's argument that his judgment referred to "Habitual Offender 5-4-501" was an apparent reference to the fact that the felony information filed in 1987 provided that Johnson was charged as a habitual offender under Arkansas Statutes Annotated section 41-1001 (Supp. 1985), but the judgment entered provided that he was sentenced as a habitual offender under Arkansas Code Annotated section 5-4-501 (1987). The habitual offender law, under the respective codification was not merely "identical" as the State suggests in its brief, but rather it was exactly the same law that was passed by the legislature. It is the act passed by the legislature, not the code, that is the law. This is a fundamental legal principle. See Ortho-McNeil-Janssen Pharmaceuticals, Inc. v. State , 2014 Ark. 124, 432 S.W.3d 563.
The provisions of both the applicable Arkansas Statutes and Arkansas Code reflected that the felony information filed in 1987 and the judgment entered in 1988 provided that Johnson had been found guilty of more than one prior felony but less than four prior felonies, and Johnson affirmed when he pleaded guilty that he understood that he was being charged as a habitual offender, having committed more than one prior felony but less than four prior felonies, and that he understood the range of sentencing for the offenses. Johnson is not entitled to a writ because the change from Arkansas Statutes Annotated to Arkansas Code Annotated, which resulted in the assignment of different codification numbers did not change the law. The law, of course, is not the codification, but the statute passed by the legislature. The different code numbers did not mean that a different statute was involved. The statute remained the same.
As to Johnson's assertions that he was not guilty of the offense of rape, habeas proceedings are not a means to challenge the sufficiency of the evidence to sustain a judgment. See Blevins v. Norris , 291 Ark. 70, 722 S.W.2d 573 (1987) (Habeas corpus petitions are restricted to questions of whether the petitioner is in custody pursuant to a valid conviction or whether the convicting court had proper jurisdiction.). Likewise, while claims that raise a jurisdictional issue, such as those that raise a claim of an illegal sentence, are cognizable in a habeas proceeding, Johnson's claim that the felony information did not contain proof of the prior felonies used to establish his habitual-offender status could have been raised in the trial court and settled there. As a result, challenges to Johnson's status as a habitual offender were not cognizable in his habeas action.
With respect to Johnson's fourth point for reversal that the circuit court failed to rule on the first three grounds raised in the habeas petition, Johnson could have filed a motion for reconsideration of any issues omitted in the order so that he could obtain a specific ruling on the issues. Denial of relief is not unfair when a petitioner had the opportunity to pursue a remedy available to him, but he chose not to do so. See Engram v. State, 360 Ark. 140, 200 S.W.3d 367 (2004). Johnson did not ask that an omitted issue be considered, and this court will not address those grounds now. Moreover, the circuit court's order denied relief on the basis that the issues raised by Johnson, which are reiterated in Johnson's brief on appeal, were not within the purview of the writ. Because the issues raised failed to implicate the jurisdiction of the trial court or the facial validity of the judgment-and-commitment order, the circuit court did not err by not listing each of Johnson's claims individually in the order denying relief.
Finally, Johnson argues that the allegations raised in the habeas petition warranted a hearing. There is no requirement that a hearing be held on every habeas petition regardless of the content of the petition. Gonder v. Kelley , 2017 Ark. 239, 2017 WL 3300538 ; George v. State , 285 Ark. 84, 685 S.W.2d 141 (1985). A hearing is not required if the petition does not allege either of the bases of relief proper in a habeas proceeding, and even if a cognizable claim is made, the writ does not have to be issued unless probable cause is shown. Noble v. Norris , 368 Ark. 69, 243 S.W.3d 260 (2006). Because Johnson did not establish a ground for issuance of the writ in his petition, the circuit court was not obligated to conduct a hearing on it.
Affirmed.
Johnson also argues on appeal that the sentence imposed and the commitment order are facially invalid because the signature that appears on the order represented as his is not in fact his signature. Johnson's conclusory assertion, made for the first time on appeal, does not show that the judgment-and-commitment order was facially invalid. Accordingly, as the issue was not raised in Johnson's petition for writ of habeas corpus and does not state a ground for the writ, we will not consider it in this appeal. See Anderson v. State , 2011 Ark. 461, 385 S.W.3d 214. | [
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RITA W. GRUBER, Chief Judge
Tiffany Turner appeals from the Union County Circuit Court's order terminating her parental rights to her son, JH, born December 8, 2015. She does not challenge the sufficiency of the evidence to support the termination decision. Her sole point on appeal is that the termination order is void and should be reversed because the circuit court failed to timely adjudicate JH dependent-neglected, depriving the court of subject-matter jurisdiction to enter any further orders in the case. We hold that the circuit court did not lose jurisdiction and affirm its order.
Because appellant does not challenge the termination decision itself, only a brief recitation of the facts is necessary. The Arkansas Department of Human Services (DHS) exercised an emergency hold on JH on February 12, 2016, alleging neglect and parental unfitness after discovering JH crying inside a running vehicle, while appellant was inside the apartment. Appellant admitted having used methamphetamine the previous evening. On April 29, 2016, the circuit court entered an order finding that probable cause necessitating JH's removal continued to exist along with custody in DHS.
On May 16, 2016, the circuit court held an adjudication hearing, which appellant and her attorney both attended. The circuit court found that JH was dependent-neglected based on appellant's drug use and placed temporary custody of JH with appellant's mother, Stephanie Watson. The court did not actually enter the adjudication order until January 25, 2017. The court entered an order of emergency change of custody on May 24, 2016, returning custody to DHS after a May 19, 2016, drug screen on Ms. Watson was positive for methamphetamine and amphetamines. The court held review hearings on August 15, 2016, and December 5, 2016. On February 6, 2017, the court held a permanency-planning hearing and changed the goal of the case to termination and adoption, specifically finding that appellant had not complied with the case plan and orders of the court. The court found that she had made "zero progress" and that she had no housing, had failed to complete drug treatment, had no income, had not visited regularly, and continued to test positive for drugs when DHS "catches her to test her." On February 7, 2017, DHS filed a petition to terminate appellant's parental rights.
The court held a termination hearing on April 17, 2017, and entered an order terminating appellant's parental rights on July 12, 2017. The court found that appellant had subjected JH to aggravated circumstances, specifically finding that there was little likelihood that services to the family would result in successful reunification. The court also found by clear and convincing evidence that it was in JH's best interest to terminate appellant's parental rights.
On appeal, appellant contends that we must reverse the circuit court's order terminating her parental rights because the court lost jurisdiction over the case when it failed to hold an adjudication hearing or enter an order adjudicating JH dependent-neglected within the statutory time frame. She argues that because the court had no jurisdiction to proceed with the case after that lapse, its order terminating parental rights is void.
We turn first to the relevant statutory law and its application to the particular facts in this case. The statute governing adjudication hearings in dependency-neglect cases provides in relevant part as follows:
(a)(1)(A) An adjudication hearing shall be held to determine whether the allegations in a petition are substantiated by the proof.
....
(4)(A) The dependency-neglect adjudication hearing shall be held within thirty (30) days after the probable cause hearing under § 9-27-315.
(B) On a motion of the court or any party, the court may continue the adjudication hearing up to sixty (60) days after the removal for good cause shown.
....
(f) In dependency-neglect cases, a written adjudication order shall be filed by the court, or by a party or party's attorney as designated by the court, within thirty (30) days of the date of the hearing or prior to the next hearing, whichever is sooner.
Ark. Code Ann. § 9-27-327 (Repl. 2015).
JH was removed from appellant's custody on February 12, 2016. The court held a probable-cause hearing on February 29, 2016. The adjudication hearing was initially scheduled for April 4, 2016, but was later continued until May 16, 2016. According to the statute, the court was authorized to continue the hearing up to sixty days after the removal, which occurred on February 12, 2016. Thus, the court was authorized by statute to continue this case until April 12, 2016. The court's hearing on May 16, 2016, was not in compliance with the statute. And although appellant attended the hearing and admits that the court found JH dependent-neglected at the hearing, she points out that the court did not enter its adjudication order setting forth this finding until January 25, 2017, well beyond the deadline set forth in the statute of thirty days after the hearing. Unquestionably, the circuit court failed to hold a timely adjudication hearing and then compounded its failure by failing to enter a timely adjudication order after it had held the hearing.
Although the circuit court erred, we hold that appellant failed to timely present this issue. She and her attorney were present at the adjudication hearing, yet appellant failed to appeal from the adjudication order. Pursuant to Ark. R. App. P.-Civ. 2, the adjudication order was a final, appealable order. Jefferson v. Ark. Dep't of Human Servs. , 356 Ark. 647, 657, 158 S.W.3d 129, 135-36 (2004). That failure precludes our review of the issue. Id. We also note that appellant failed to raise this issue at the termination hearing. Indeed, appellant never raised this issue to the circuit court.
We recognize appellant's argument that this is an issue of subject-matter jurisdiction and may be raised for the first time on appeal. Our relevant case law suggests otherwise. Although the juvenile code sets forth certain time frames for the court regarding the various hearings and orders, these statutes do not express a remedy for a violation of these time limits. McKinney v. Ark. Dep't of Human Servs. , 2017 Ark. App. 475, at 16, 527 S.W.3d 778, 788-89. We have held that when the legislature has not seen fit to fashion a remedy, it is not the province of the court of appeals to do so. Id. We have also held that the circuit court's violation of a statutory time frame under the juvenile code does not cause the court to lose jurisdiction over the case when the General Assembly did not provide a sanction for the violation and there was no evidence that such a result was intended. Newman v. Ark. Dep't of Human Servs. , 2016 Ark. App. 207, at 9, 489 S.W.3d 186, 192 (citing Hill v. Ark. Dep't of Human Servs. , 2012 Ark. App. 108, 389 S.W.3d 72 (holding failure of the circuit court to hold termination hearing within ninety days of the filing of the petition did not deprive the circuit court of jurisdiction)); see also Wade v. Ark. Dep't of Human Servs. , 337 Ark. 353, 990 S.W.2d 509 (1999) (holding violation of requirement that termination order be entered within thirty days of hearing did not cause circuit court to lose jurisdiction to enter order where statute did not provide sanction for an untimely filing and appellant suffered no real prejudice where order simply showed that which had actually occurred).
Termination cases are unique civil cases because time is viewed from the juvenile's perspective, and the best interests of the children take precedence at every stage of the proceedings. Burkett v. Ark. Dep't of Human Servs. , 2016 Ark. App. 570, at 5, 507 S.W.3d 530, 534. To reverse this case would be contrary to JH's best interest. We hold that the circuit court's violation of the time limits set forth in Ark. Code Ann. § 9-27-327 did not deprive it of jurisdiction over the case.
Affirmed.
Harrison and Glover, JJ., agree.
Although the legislature has failed to incorporate statutory consequences for a circuit court's failure to comply with the statutory timelines in the juvenile code, we strongly encourage the circuit courts to abide by these timelines because compliance is in the juveniles' best interests. | [
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KENNETH S. HIXSON, Judge
Appellant David L. McKim appeals an order of the Faulkner County Circuit Court granting summary judgment in favor of appellee Jack B. Sullivan in a negligence action arising from a motorcycle accident. On appeal, appellant contends that the circuit court erred in granting summary judgment because the circuit court erred in ruling that Arkansas Code Annotated section 27-51-1405(a) - (b) (Repl. 2010) does not apply to natural substances such as dirt, gravel, and rocks. However, we must dismiss this appeal without prejudice because the judgment herein is not a final judgment for purposes of appeal, and there is a lack of a proper certification under Rule 54(b) of the Arkansas Rules of Civil Procedure.
On June 4, 2014, McKim was traveling westbound on Elliott Road in Greenbrier, Arkansas, near the intersection with Arkansas Highway 25 when he lost control of his motorcycle and collided with oncoming traffic, wherein McKim sustained significant personal injuries. In his complaint, McKim alleged that a series of events occurred prior to the accident that ultimately turned out to be a proximate cause of the accident and his injuries. Appellee Sullivan owns property along Elliot Road. A couple days prior to McKim's accident, it is undisputed that a tractor trailer had gotten stuck in a ditch on Sullivan's property and that Sullivan had employed Jim Smith's Wrecker Service to remove the tractor trailer. McKim alleged in his complaint that as a result of the removal of the tractor trailer, dirt and gravel were strewn across Elliot Road. McKim further alleged that that the dirt and gravel on the roadway caused him to lose control of his motorcycle and that Sullivan and Jim Smith, individually and d/b/a Jim Smith Collision and Wrecker Center, Inc. (collectively Jim Smith's Wrecker Service), were negligent by failing to remove the dirt and gravel from the roadway. Sullivan filed an answer generally denying liability.
McKim subsequently filed an amended complaint where he added Mitchell Collision and Towing Center, Inc. d/b/a Jim Smith Collision and Wrecker, Jim Smith Wrecker Service, and Smith Collision and Wrecker; Samuel Mitchell, Individually; and Sam Mitchell, Individually (collectively referred to as the Mitchell defendants), as additional defendants. While the amended complaint adds the Mitchell defendants, the complaint does not contain any allegations against the Mitchell defendants except to state that Mitchell Collision and Towing Center, Inc., is an Arkansas corporation, Samuel Mitchell is the "Incorporator / Organizer" of the corporation, and Sam Mitchell is the president of the corporation.
On August 19, 2016, Sullivan filed a separate motion for summary judgment. Neither Jim Smith's Wrecker Service nor the Mitchell defendants joined that motion. In his motion, Sullivan argued that he did not owe either a common-law or a statutory duty to prevent natural materials from being deposited onto a public roadway or require their removal. Sullivan further argued that there "is no common law duty imposed on a landowner such as Sullivan to control natural substances on his property for the benefit of users of a public highway." And Sullivan claimed that Arkansas Code Annotated section 27-51-1405 does not impose a duty because the statute does not apply to "natural objects ," such as dirt, gravel, rocks, or mud. Additionally, Sullivan argued that McKim could not prove that "Sullivan breached a duty owed to [McKim] as Sullivan had no duty to prevent and/or remove the gravel debris at issue from Elliott Road, which allegedly caused [McKim] to lose control of his motorcycle." Thus, Sullivan argued that he was entitled to judgment as a matter of law.
McKim filed a response denying that Sullivan was entitled to judgment as a matter of law. McKim argued that Arkansas Code Annotated section 27-51-1405 is applicable as it prohibits any person from depositing on any highway any "substance likely to injure any person, animal, or vehicle upon the highway." Ark. Code Ann. § 27-51-1405(a). McKim further argued that Arkansas Code Annotated section 27-51-1405(b) states that any person who "drops or permits to be dropped or thrown upon any highway any destructive or injurious material shall immediately remove it or cause it to be removed." Therefore, McKim alleged that both provisions imposed a duty that Sullivan breached.
The circuit court filed an order granting Sullivan's motion for summary judgment on March 23, 2017. In its order, the circuit court made the following relevant findings:
2. The Court finds that the Plaintiff must prove the following elements to establish a prima facie negligence cause against Sullivan: 1) the Plaintiff sustained damages, 2) Sullivan was negligent, and 3) that negligence was the proximate cause of Plaintiff's damages. Ambrus v. Russell Chevrolet Co. , 327 Ark. 367, 937 S.W.2d 183 (1997). To prove any negligence on the part of Defendant Sullivan, Plaintiff must show a failure to exercise proper care in the performance of a legal duty, which Sullivan owed to Plaintiff under the circumstances. Cent. Okla. Pipeline, Inc. v. Hawk Field Serv., LLC , 2012 Ark. 157, 400 S.W.3d 701. Duty is a concept that arises out of the recognition that relations between individuals may impose upon one a legal obligation for the other. Id. Absent a duty, there can be no breach and no liability sounding in negligence. Federal Savings Loan Corp. v. Smith , 721 F.Supp. 1039, 1048 (E.D. Ark. 1989). This question of what duty, if any, is owed a Plaintiff alleging negligence is always a question of law. Lawhon Farm Supply, Inc. v. Hayes , 316 Ark. 69, 71, 870 S.W.2d 729, 730 (1994).
3. Arkansas has no requirement that natural materials be removed from a roadway or prevent their deposit thereon. Defendant points out the closest statute addressing this issue is Ark. Code Ann. § 27-51-1405. That statute speaks of the throwing or depositing of manufactured or unnatural substances on a roadway, not dirt or the substance of the roadway itself. Defendant's reasoning, that this Court adopts, that the intent of the statute is to prevent unnatural dangerous objects from entering the roadway. Natural objects like dirt, gravel debris, rocks, and/or mud are not identified in the above statute. Because there Sullivan owed no statutory duty to Plaintiff to prevent natural debris from entering the roadway, and no duty to remove said natural debris accrued to Sullivan. Additionally, the common law enforces no duty on a landowner such as Sullivan to control natural substances on his property for the benefit of users of a public highway. Driggers v. Locke , 323 Ark. 63, 913 S.W.2d 269 (1996).
4. Because Plaintiff cannot prove that Sullivan owed a duty to Plaintiff that was breached, Plaintiff cannot establish negligence. This results in no material facts being in dispute and therefore Defendant Sullivan is entitled to judgment as a matter of law.
5. Defendant Sullivan's Motion for Summary Judgment is, for the above-stated reasons, granted.
Clearly, the order granting summary judgment is not a final order in that the order did not dispose of the claims against Jim Smith's Wrecker Service. Therefore, McKim filed a motion for reconsideration or in the alternative a motion for certification pursuant to Rule 54(b) to seek our appellate review. On May 10, 2017, the circuit court filed an order granting appellant's motion for certification pursuant to Rule 54(b) and directing final judgment as to Sullivan on the basis of the findings detailed in the attached Rule 54(b) certificate. This appeal followed.
I. Rule 54(b) Certificate
The sufficiency of a certificate pursuant to Rule 54(b) of the Arkansas Rules of Civil Procedure is a jurisdictional issue that this court has the duty to raise, regardless of whether it is raised by the parties. Kowalski v. Rose Drugs of Dardanelle, Inc. , 2009 Ark. 524, 357 S.W.3d 432. Rule 2(a)(1) of the Arkansas Rules of Appellate Procedure-Civil provides that an appeal may be taken from a final judgment or decree entered by the circuit court. Although the purpose of requiring a final order is to avoid piecemeal litigation, a circuit court may certify an otherwise nonfinal order for an immediate appeal by executing a certificate pursuant to Rule 54(b). Gray v. White River Health Sys., Inc. , 2016 Ark. 73, 483 S.W.3d 293. Rule 54(b) provides, in pertinent part, that the circuit court may direct the entry of a final judgment "only upon an express determination supported by specific factual findings, that there is no just reason for delay and upon an express direction for the entry of judgment." Ark. R. Civ. P. 54(b) ; see also Holbrook v. Healthport, Inc. , 2013 Ark. 87, 2013 WL 776240. Furthermore, the court must execute a certificate "which shall set forth the factual findings upon which the determination to enter the judgment as final is based[.]" Ark. R. Civ. P. 54(b). Our supreme court has repeatedly held that "the rule requires the order to include specific findings of any danger of hardship or injustice that could be alleviated by an immediate appeal and to set out the factual underpinnings that establish such hardship or injustice." Gray , 2016 Ark. 73, at 3, 483 S.W.3d at 295 ; see also Kyle v. Gray, Ritter & Graham, P.C. , 2012 Ark. 268, 2012 WL 2149754. In Bushee v. Arkansas Department of Human Services , 2016 Ark. App. 339, at 4, 492 S.W.3d 559, 562, we further explained that the circuit court must "tie [its] findings to its conclusion." In other words, the certificate must "explain exactly what constitutes the hardship or injustice or explain how it could be alleviated by an immediate appeal." Id.
Here, the certificate sets out the following relevant findings:
1. On March 23, 2017, this Court granted summary judgment to Separate Defendant Sullivan on the basis that Plaintiff could not prove that Sullivan owed a duty to the Plaintiff.
2. Separate Defendant Jim Smith, who did not file for summary judgment continues to be subject to the jurisdiction of the Court.
3. The claims against Smith are based upon the same set of facts and allegations as to the duty owed, while not identical, are similar and overlap with the allegations of duty determined by the Court's March 23, 2017 Order.
4. As such, directing entry of final judgment as to Separate Defendant Sullivan will not lead to piecemeal appeals of this matter and it is in the best interests of judicial economy for an appeal of this order to take place prior to moving forward with the remaining claims.
Upon the basis of the foregoing factual findings, the court hereby certifies, in accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has determined that there is no just reason for delay of the entry of a final judgment and that the court has and does hereby direct that the judgment shall be a final judgment for all purposes.
While the order may contain factual findings of the issues that confronted the circuit court in its ruling for summary judgment, the order contained no factual findings explaining why hardship or injustice would result if an immediate appeal is not permitted. Without specific findings to explain the hardship or injustice, the order does not satisfy the requirements of Rule 54(b), and we must dismiss this appeal without prejudice.
Appeal dismissed without prejudice.
Whiteaker and Murphy, JJ., agree.
The record does not contain an answer filed by Jim Smith's Wrecker Service; however, there is some language in the record that vaguely indicates that Jim Smith's Wrecker Service did file an answer.
The pleadings in the record do not contain any information as to the relevance of the Mitchell defendants to this litigation other than adding them as named defendants.
The record reflects that on August 3, 2017, defendants Mitchell Collision and Towing Center, Inc.; Samuel Mitchell; and Sam Mitchell were dismissed with prejudice after a separate motion for summary judgment was filed. However, there is no order dismissing Jim Smith's Wrecker Service, and therefore, there are claims and parties still pending in circuit court. | [
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On appeal, McLemore argues that DHS failed to prove the aggravated-circumstances ground. According to McLemore, the trial court erroneously relied on the caseworker's testimony regarding the protective-services case. She points out that the caseworker admitted that no valid case plan had been established in the protective-services case and that McLemore had not signed any documents advising her of DHS's goals or expectations. Further, McLemore maintains that DHS had to prove that appropriate family services were offered in this case, not the protective-services case.
We note that McLemore's noncompliance with the protective-services case was part of her stipulations to the trial court's probable-cause finding and its adjudication of L.S. as dependent-neglected due to parental unfitness. Thus, we agree with the trial court that McLemore's prior noncompliance was relevant to whether there was little likelihood that further family services would result in successful reunification with L.S. In any event, McLemore's noncompliance with the protective-services case was not the only basis on which the trial court could have found that L.S. had been subjected to aggravated circumstances.
Contrary to McLemore's argument, the aggravated-circumstances ground does not require that DHS prove that meaningful services toward reunification were provided. See, e.g. , Willis v. Ark. Dep't of Human Servs. , 2017 Ark. App. 559, 538 S.W.3d 842. Nevertheless, there must be more than a mere prediction or expectation on the part of the trial court that reunification services will not result in successful reunification. Yarborough v. Ark. Dep't of Human Servs. , 96 Ark. App. 247, 240 S.W.3d 626 (2006). The trial court heard testimony at the termination hearing about McLemore's substance-abuse counseling and her having achieved step four in a drug-treatment program while in prison. The trial court also heard testimony that McLemore expected to be released from prison within a month after the termination hearing. Despite having received drug counseling and drug treatment while incarcerated, McLemore testified at the termination hearing that she did not think her drug use had affected her children or her ability to parent those children. Thus, we cannot say that the trial court clearly erred in terminating McLemore's parental rights to L.S. on the aggravated-circumstances ground based on its finding that there was little likelihood that further services would result in successful reunification. We also agree with the trial court that reunification with L.S. could not occur within a reasonable period of time from L.S.'s perspective and that L.S. needs permanency "now-not a year from now."
B. Best Interest
McLemore does not challenge the trial court's adoptability finding. She argues that the trial court's determination that potential harm could result from returning custody of L.S. to her was based on little more than speculation. In determining potential harm, the trial court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent's care and custody. Harbin v. Ark. Dep't of Human Servs. , 2014 Ark. App. 715, 451 S.W.3d 231. The trial court is not required to find that actual harm would result or to affirmatively identify a potential harm. Id. The potential-harm evidence must be viewed in a forward-looking manner and considered in broad terms. Id.
McLemore complains that DHS caseworkers did not do their jobs, that DHS rushed to terminate her rights instead of preserving the familial bonds, and that DHS could not use her noncompliance from the protective-services case to bolster the evidence in this case. McLemore also asserts that evidence of her progress in prison, her impending release, and her plans upon release were not properly considered by the trial court and that neither DHS nor the trial court considered the effect that termination of her parental rights would have on L.S. as a sibling.
There is no indication that the trial court failed to consider any evidence or improperly considered any evidence, as discussed above. The trial court found that DHS had made reasonable efforts to provide services and ordered DHS to continue to explore possible placements with a permanent custodian. While McLemore states that DHS should not have sought to terminate her rights while still trying to find a relative placement for L.S., which would have avoided the necessity of terminating her rights, we note that Ark. Code Ann. § 9-27-338(c) lists permanency goals in order of preference and that permanent custody with a relative is listed after adoption. Ark. Code Ann. § 9-27-338(c)(6) ; see also Helvey v. Ark. Dep't of Human Servs. , 2016 Ark. App. 418, 501 S.W.3d 398. Further, McLemore cites no authority for her claim that DHS could not seek to terminate her rights when it did.
Even if McLemore is released from prison when she expects, she would not be ready to take custody of L.S. There was testimony that McLemore had secured a home with relatives and a temporary job, but she has not demonstrated her sobriety. A child's need for permanency and stability may override a parent's request for additional time. See Henderson v. Ark. Dep't of Human Servs. , 2010 Ark. App. 191, at 10, 377 S.W.3d 362, 386 (affirming trial court's determination that termination was in child's best interest when mother's drug rehabilitation was "still a work in progress"). We cannot say that the trial court clearly erred in determining that termination of McLemore's parental rights was in L.S.'s best interest.
Affirmed.
Glover and Brown, JJ., agree. | [
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Second, Ark Code Ann. Ark. Code Ann. § 9-27-341 provides in pertinent part:
(3) An order forever terminating parental rights shall be based upon a finding by clear and convincing evidence:
(A) That it is in the best interest of the juvenile, including consideration of the following factors:
(i) The likelihood that the juvenile will be adopted if the termination petition is granted; and
(ii) The potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent, parents, or putative parent or parents; and
(B) Of one (1) or more of the following grounds:
....
(vii)(a) That other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent.
Finally, with regard to establishing grounds for termination of parental rights, Ark. Code Ann. § 9-27-341"Termination of Parental Rights," requires that only one ground must be met to terminate parental rights. See Wade v. Ark. Dep't of Human Servs. , 337 Ark. 353, 359, 990 S.W.2d 509, 513 (1999).
III. Points on Appeal
With these standards in mind, we turn to the circuit court's order that Earls challenges on appeal. Earls challenges four statutory grounds for termination and the circuit court's best-interest findings.
A. Subsequent Factors
Earls asserts that the circuit court erred in finding that the subsequent factors grounds had been met contending that no services were offered to Earls and Earls did not manifest an incapacity or indifference to rehabilitate his circumstances.
Here, the record demonstrates that Earls does not have a relationship with the children; Earls has not seen, met, sent letters, or talked to these children. Earls was unavailable to take custody of the children when they were removed from their mother. Earls has been incarcerated for all but two months of the twins' lives. Since the filing of the original petition, Earls has been incarcerated for his failure to register as a sex offender after he entered a plea for having sex with a thirteen-year-old girl. The record further demonstrates that Earls did not request services from the Department, and because of his incarceration, there were no services that the Department could offer. Additionally, Earls has been eligible for early release since 2015, but because of his disciplinary infractions-use of synthetic marijuana, failure to obey, and insolence to a staff member-he was deemed not eligible for early release. Also, Earls does not have a plan for housing or employment upon his release.
In sum, the record demonstrates that Earls failed to address the subsequent factors that occurred. In this case, the twins were three years old at the August 2017 hearing, and Earls testified that he had never seen the twins or made contact with them. With the exception of two months, Earls has been unavailable to the twins their entire lives, and at the time of the hearing he had approximately two years remaining on his sentence before he would be considered for release from incarceration. While incarceration is not, in and of itself, conclusive on the termination issue, imprisonment does not toll a parent's responsibilities toward his or her children.
Linker-Flores v. Ark. Dep't of Human Servs. , 364 Ark. 224, 217 S.W.3d 107 (2005). Further, his conduct during his incarceration, his history of substance abuse, the unknown status of his current substance-abuse issues, his lack of secured housing and income, and his lack of relationship with the twins were contributing factors in support of the circuit court's decision.
Having conducted a de novo review of all the relevant evidence, we conclude that the circuit court did not clearly err in terminating Earls's parental rights on the subsequent-factors ground regarding the twins. Earls's imprisonment does not toll his responsibilities as a parent toward his children. See Zgleszewski v. Zgleszewski , 260 Ark. 629, 542 S.W.2d 765 (1976). Here, Earls has manifested the incapacity or indifference to remedy the subsequent factors or rehabilitate his circumstances. Accordingly, based on our standard of review and the record before us, we affirm the circuit court.
B. Best Interest of the Children
Earls further challenges the circuit court's finding that the termination of his parental rights to the twins was in their best interest. "The two factors to consider in determining best interest are the likelihood of adoption and potential harm caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)." Brumley v. Arkansas Department of Human Services , 2015 Ark. 356 at 10, 2015 WL 5895440. Here, Earls does not challenge the adoptability finding. Further, the record supports adoptability as Tarpley testified that the twins were adoptable, their foster parents would like to adopt them, and the circuit court entered an order finding that they are adoptable. Thus, we conclude that the adoptability prong has been satisfied.
Earls challenges the circuit court's finding of potential harm. "The potential-harm analysis must be conducted in broad terms, including the harm the child suffers from the lack of stability in a permanent home." Id. (internal citations omitted). The circuit court found that that placing custody of the twins with Earls would be harmful to the twins' health and safety due to Earls's incarceration for a substantial period of the children's lives, his continued incarceration, his level three sex-offender status, his failure to register as a sex offender, his conduct during his incarceration, his history of substance abuse, the unknown status of his substance-abuse issues, and his non-existent relationship with his children. The circuit court also found that the twins were adoptable in a previous order in this case, and found that the twins remain adoptable. Earls challenges this best-interest finding, alleging that the circuit court erred because Earls provided a list of relatives who could care for his children while they awaited his release from incarceration, which "should only be one or two months"; and therefore, the potential-harm factor had not been satisfied. We disagree.
Here, at the termination hearing, the twins were three years old and Earls had not met, contacted, or sought visitation with the children. The twins have been in the Department's custody their entire lives, and Earls takes the position that he will be out in a month or two and when he is released, he could then seek services to ready himself for parenthood, secure steady income and locate housing. Earls testified that relatives would care for the children, but he also testified that he had not had any discussions with relatives about caring for the twins. Further, Earls testified that he remains incarcerated, is unsure of his release date and had not secured stable housing and employment.
Additionally, Tarpley testified that Earls had not provided her with a list of relatives willing to care for the twins.
As discussed above, permanency is the objective of the termination procedure and cannot be lightly discounted. Bearden v. Ark. Dep't of Human Servs. , 344 Ark. 317, 42 S.W.3d 397 (2001). Here, we conclude that the evidence of potential harm, combined with the children's adoptability, supports the circuit court's ruling that termination of Earls's parental rights is in the twins' best interest.
Affirmed.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
I wish to make it very clear that, in my view, the circuit court did not err in refusing to immediately give Mr. Earls custody of the minor children. However, I am unable to conclude that Mr. Earls has been afforded his fundamental right to due process, as embodied in this State's juvenile code, specifically the termination-of-parental-rights statute, Arkansas Code Annotated section 9-27-341. Moreover, I question whether termination of parental rights, which necessarily also involves the termination of parental obligations is appropriate in all but the most extreme cases. By terminating Mr. Earls's parental rights, the State of Arkansas has excused him from being financially responsible for his children. Accordingly, I dissent.
I will not dispute that Mr. Earls has, in the past, demonstrated a remarkable level of personal and parental irresponsibility. His own testimony confirmed that he is a convicted sex offender, currently serving a prison sentence for failure to register as a sex offender, a former substance abuser, a seventh-grade dropout, and a serial noncustodial parent-he has three other children, one who is twenty-one and two others who are being cared for by family members. Nonetheless, I must dissent from the termination of what is euphemistically called Mr. Earls's "parental rights."
A value judgment about whether Mr. Earls would be a good parent or not, however well-founded, does not excuse the circuit court from ensuring that he was given due process. The history of this case arguably demonstrates that Mr. Earls was denied his due process rights. In Earls I , we noted that he did not receive assistance of counsel until the termination hearing. Earls v. Ark. Dep't Human Servs. , 2017 Ark. 171, 518 S.W.3d 81. In fact, DNA testing had conclusively established nearly a year earlier that Mr. Earls is the father of the twins. We reversed and remanded the case because, the circuit court terminated Mr. Earls's parental rights based on the children being out of his home for twelve months and his failure to remedy the cause for removal, in spite of the fact there was no evidence in the record that established when Mr. Earls's status as a parent "attached." Id. 2017 Ark. at 11, 518 S.W.3d at 88. It was only after this court reversed and remanded the case did the circuit court enter an order of paternity.
The circuit court's second decision to terminate Mr. Earls's parental rights manifest an even more egregious deprivation of his due-process rights. The circuit court based its decision on three separate grounds, one of which-that Mr. Earls was sentenced to a substantial period of incarceration-was not asserted in the termination petition that ADHS had filed. Mr. Earls argues persuasively that these grounds lacked evidentiary support in the record, which the majority tacitly acknowledges by refusing to affirm the circuit court on any of the three grounds that it relied on.
Nonetheless, the majority has affirmed "on de novo review," justifying its decision on a ground it calls "failure to address subsequent factors," which I cannot find in Arkansas Code Annotated section 9-27-341. In its fact-finding, the majority has concluded that this ground is proved by Mr. Earls's "conduct during his incarceration, his history of substance abuse, the unknown status of his current substance-abuse issues, his lack of secured housing and income, and his lack of relationship with the twins." While these facts may be relevant in an analysis of whether termination of his parental rights is in the children's best interest, it simply does not correspond to the grounds set forth in section 9-27-341.
Again, I wish to emphasize that I am not suggesting that Mr. Earls be given physical custody of his children while he is incarcerated, or at any time in the foreseeable future. I do however believe that ADHS failed to consider less drastic alternatives than termination of his parental rights, like relative placement. Mr. Earls provided a list of relatives that ADHS completely ignored.
There are many compelling reasons for requiring ADHS to exhaust the possibility of placing children with relatives. Not the least of these reasons is that a parent has a fundamental constitutional right to parent his or her children without undue government interference. Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000). I firmly believe in the wisdom of this decision. If given an opportunity, the state could always find a "better" parent-one that has more money, a better education, a nicer home, the "right" views on child rearing, etc. However, in practice, termination of parental rights in favor of stranger adoption is not the panacea that the majority seems to believe it is. See, e.g. , Taffner v. State , 2018 Ark. 99, 541 S.W.3d 430. In my view, there is nothing inherently wrong with an ongoing protective-services case; the state has innumerable ways of protecting the health and safety of children "in the system." When ADHS closes a case, not so much.
Finally, in my view, termination of parental rights is fundamentally contrary to the interests of society as a whole. Concomitant with the termination of parental rights is a termination of parental responsibility. Mr. Earls has never been required to be financially responsible for the twins. Instead, that burden has been shifted to the taxpayers. Foster parents receive a monthly check for the children that they house. Even after the children are adopted, the state pays a subsidy if multiple siblings are involved, if the child is older than a toddler, or if the child has "special needs." Additionally, the taxpayers of this state pay for the child's-or in this case, the children's-healthcare.
To Mr. Earls's credit, he took steps to acknowledge his paternity and ultimately accept responsibility for fathering these children. In my view it is quite elegiac that an agency of this state-and the courts-has declined to accept his offer. It is unjust to shift the burden of caring for an able-bodied man's children, when responsible parents in this state are struggling to care for their own children.
I respectfully dissent.
The circuit court made the following findings:
a. Other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juveniles in the custody of the father is contrary to the juveniles' health, safety, or welfare and that, despite the offer of appropriate family services, the father has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the father's circumstances that prevent the placement of the juveniles in the custody of the father. Ark. Code Ann. § 9-27-341 (b)(3)(vii)(a).
b. Jacob Earls is found by this Court to have subjected the juveniles to aggravated circumstances in that there is little likelihood that further services to the family will result in successful reunification. The Court finds that no additional services to the father will promote reunification.
c. Jacob Earls has been sentenced in a criminal proceeding for a period of time which would constitute a substantial period of the juveniles' life A.C.A. § 9-27-341(b)(3)(B)(viii)(a).
THE PETITION IS AMENDED TO REFLECT THIS FINDING.
d. Specifically, Jacob Earls does not have a relationship with the children. Mr. Earls has not seen, met, talked to, or sent letters to these children. Mr. Earls did not contribute to the dependency-neglect, but was unavailable to take custody of the children at the time of the removal. Mr. Earls did not remedy the circumstances which made him unavailable at the time of the removal. Mr. Earls has been incarcerated since October of 2014, which is as a substantial period of the juveniles' lives. Mr. Earls has not requested services from the Department since he has been incarcerated. The length of time it would require to wait for Mr. Earls to be released from prison, and then complete services to make himself available for custody of the juveniles is inappropriate.
I am mindful that Arkansas Code Annotated section 9-27-341 was amended in 2015 to add the following ground:
(b) That a juvenile has been adjudicated by the court to be dependent-neglected and has continued out of the home of the noncustodial parent for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that prevented the child from safely being placed in the parent's home, the conditions have not been remedied by the parent.
However, this ground for termination is dependent on the 2015 amendment to section 9-27-327, which concerns dependency-neglect adjudications, and contains the following language:
(B)(i) If the court finds that the juvenile is dependent-neglected, the court shall address whether a noncustodial parent contributed to the dependency-neglect and whether the noncustodial parent is a fit parent for purposes of custody or visitation.
(ii) If the court determines that the child cannot safely be placed in the custody of the noncustodial parent, the court shall make specific findings of fact regarding the safety factors that need to be corrected by the noncustodial parent before placement or visitation with the juvenile.
However, Mr. Earls was not identified as a parent at the time of adjudication. Accordingly, the circuit court made no "specific findings" regarding the "safety factors" that Mr. Earls was required to correct in order for ADHS to place the twins with him. Moreover, it is undisputed that ADHS made no effort to assist Mr. Earls in any way. | [
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KAREN R. BAKER, Associate Justice
Appellant Tyrone Swift appeals to this court from the dismissal by the trial court of his pro se petition and amended petition to correct an illegal sentence pursuant to Arkansas Code Annotated section 16-90-111 (Repl. 2016). He argued in the petition and amended petition that sentences imposed on him in 2013 for first-degree battery and first-degree criminal mischief were illegal because he did not knowingly and intelligently sign the agreement to enter his plea as a habitual offender, because his trial counsel did not adequately explain his plea agreement, and because the Arkansas Department of Correction (ADC) erred in its determination that he would be required to serve 100 percent of his sentence for his first-degree battery conviction without being eligible for parole. The trial court held that Swift did not establish that his sentences were illegal on their face, and thus he was not entitled to relief under the statute. The trial court further held that, to the extent Swift raised claims pursuant to Arkansas Rule of Criminal Procedure 37.1, Swift's claims were untimely and successive. For the reasons set forth below, Swift fails to demonstrate that he is entitled to relief, and we therefore affirm.
On December 17, 2013, judgment was entered in Swift's case reflecting that he entered a plea of guilty to first-degree battery and first-degree criminal mischief for which he was sentenced as a habitual offender under Arkansas Code Annotated section 5-4-501(b) (Supp. 2011) to serve an aggregate sentence of 300 months' imprisonment. In November 2016, Smith sought relief from the judgment pursuant to section 16-90-111. While the time limitations on filing a petition under section 16-90-111(a)(b)(1) alleging that the sentence was imposed in an illegal manner were superseded by Arkansas Rule of Criminal Procedure 37.2(c), the portion of section 16-90-111 that provides a means to challenge a sentence at any time on the ground that the sentence is illegal on its face remains in effect. See Beyard v. State , 2017 Ark. 203, 2017 WL 2378181. For that reason, the trial court had authority to grant relief under the statute if the sentence imposed on Swift had indeed been illegal. Ark. Code Ann. § 16-90-111(a) ; Jenkins v. State , 2017 Ark. 288, 529 S.W.3d 236.
An illegal sentence is one that is illegal on its face. Fischer v. State , 2017 Ark. 338, 532 S.W.3d 40. A sentence is illegal on its face when it is void because it is beyond the trial court's authority to impose and gives rise to a question of subject-matter jurisdiction. Lambert v. State , 286 Ark. 408, 692 S.W.2d 238 (1985). A sentence imposed within the maximum term prescribed by law is not illegal on its face. See Fischer , 2017 Ark. 338, 532 S.W.3d 40 ; see also Green v. State , 2016 Ark. 386, 502 S.W.3d 524.
Swift first contends that the trial court erred in denying relief on the ground that he was not informed before he entered his plea that he would be sentenced as a habitual offender. As support for the contention, he notes that the designation "habitual offender" on the plea agreement was circled rather than checked. Swift further alleges that he was misinformed by his attorney that, if he signed the plea agreement, he would serve only five years before being eligible for parole and that he did not agree to the sentence imposed or understand that he would be required to serve the complete sentence. In short, Swift contends he entered his plea prompted by poor, inaccurate advice received from his attorney.
Here, the sentences that were imposed on Swift did not exceed the sentences permitted by subsection (b) of the habitual-offender act. First-degree battery, a class B felony, is subject to a term of imprisonment of not less than five years nor more than forty years. Ark. Code Ann. § 5-4-501(b)(2)(C). Swift was sentenced to 360' months or 30 years' imprisonment for the first-degree battery conviction, a period of time well within the maximum term. First-degree criminal mischief, a class D felony, is subject to a term of imprisonment of not more than fifteen years. Ark. Code Ann. § 5-4-501(b)(2)(E). In the same vein, Swift was sentenced to a term of 120 months' or 10 years' imprisonment for the first-degree criminal-mischief conviction, a period of time within the maximum term of imprisonment for a class D felony subject to the habitual-offender enhancement. Swift is not entitled to relief to correct an illegal sentence because his sentences are not illegal.
Moreover, Swift has not demonstrated that he was entitled to have his sentence vacated under the statute because the fact that the designation on the plea agreement that he was being sentenced as a habitual offender was circled rather than checked is not sufficient to render the judgment illegal on its face. Cf. Green v. State , 2017 Ark. 361, 533 S.W.3d 81 (judgment entered after Green pleaded guilty was facially invalid because it lacked checkmark in the box on the judgment itself to indicate that he was sentenced as a habitual offender). Swift initialed and signed the plea agreement, indicating that he understood the sentencing range for the offenses. Simply put, Swift's claim regarding the plea agreement does not demonstrate that his sentence is illegal on its face.
Swift also contends he would not have signed the plea statement had either his counsel or the court explained that he would serve twenty-five years "day for day" before being released. Swift argues that had counsel advised him that he was entering a plea as a habitual offender and would serve 100 percent of his sentence, he would not have pleaded. The ADC's determination concerning parole eligibility does not call into question the legality of the original judgment and is not a ground for relief under section 16-90-111. Green , 2017 Ark. 361, 533 S.W.3d 81.
To the extent Swift raises claims regarding the illegal imposition of sentence or of ineffective assistance of counsel, those claims should have been raised in a timely Rule 37.1 petition. The trial court held that Swift had previously sought Rule 37.1 relief, was denied relief on the merits, and is not entitled to file a second petition. The trial court's decision denying relief in this case was not clearly erroneous because Swift did not meet his burden of demonstrating that the sentences imposed on him in the judgment were illegal.
Affirmed.
Swift indicated in his amended petition that he entered a plea of nolo contendere, and the State in its brief and the trial court in its order repeat that statement, but the copy of the sentencing order contained in the record in the appeal reflects that he entered a guilty plea. For the purposes of consideration of the claims under section 16-90-111, it is of no import whether the plea was one of guilty or nolo contendere because there is no distinction made between pleas of guilty and nolo contendere. See Martin v. State , 2015 Ark. 147, 460 S.W.3d 289. Trial courts are required to treat a plea of nolo contendere the same as if it were a plea of guilty. See Ark. Rule of Crim. P. 24.6 (2017). The factual inquiry required for acceptance of a guilty plea and a plea of nolo contendere is the same. Ashby v. State , 297 Ark. 315, 761 S.W.2d 912 (1988).
In his brief in this appeal, Swift argues the following claims that were not raised in the trial court: he had been convicted of only two prior felonies rather than four; a prior felony conviction from another jurisdiction was used to establish that he was a habitual offender; he was intellectually impaired; the plea agreement erroneously showed his name to be "Tyrone Smith" rather than "Tyrone Swift"; the State failed to prove that he was guilty of first-degree battery, and the habitual-offender statute was void for vagueness. We do not address arguments that are raised for the first time on appeal. Hicks v. State , 2017 Ark. 262, 526 S.W.3d 831. Appellants are bound by the arguments raised in the trial court and the scope and nature of those arguments as presented to the trial court. See id.
Under Arkansas Rule of Criminal Procedure 37.2(c) (2013), a petition claiming relief under the rule must be filed in the circuit court within ninety (90) days of the date of the entry of judgment if the petitioner did not appeal the judgment of conviction. | [
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PHILLIP T. WHITEAKER, Judge
In this one-brief appeal, appellant Rachel Cooper challenges the order of the Woodruff County Circuit Court granting appellee Chris Merwether primary custody of their daughter, A.M. Her sole argument on appeal is that the circuit court erred in finding that placing custody with Merwether was in A.M.'s best interest. We disagree and affirm.
Cooper and Merwether are the parents of A.M., who was born in September 2014. Although Cooper and Merwether were never married, they lived together following A.M.'s birth until sometime the following spring. After their separation, the parties agreed that each parent would keep A.M. for a week at a time, and neither would pay child support. In April 2016, Merwether filed a paternity complaint and petition for custody of A.M. Cooper answered and filed a counterclaim asking that custody be placed with her.
The circuit court held a hearing on the complaint and counterclaim in February 2017. The parties stipulated to paternity, and the court heard evidence only on the issue of custody. Merwether presented evidence about his education, work history, and home life, and he related his concerns about Cooper's home life. One of those concerns involved a period of time in which Cooper resided in a camper trailer, which Merwether felt was an inappropriate environment for A.M. Another concern involved the safety of Cooper's current residence due to crime in the area. He also expressed his worries about her parenting skills, specifically referencing episodes of severe diaper rash that went untreated by Cooper, and he complained about the cleanliness of Cooper's home and A.M.'s hygiene while in Cooper's care. He further described his frustration with her refusal to cooperate in shared parenting, mentioning specific instances when she refused to return A.M. at the appointed time.
Cooper likewise presented evidence of her circumstances. She explained that she was a stay-at-home mother and was able to do so because of her husband's income. She admitted that for a brief time, she and her husband lived in a camper trailer because of the failure of the heater at their rented apartment. She described her current apartment accommodations and noted that A.M. had her own bedroom, as opposed to Merwether's home, where A.M. and Merwether shared a room. Cooper conceded that there recently had been a shooting at the apartment complex, but she denied that it was an unsafe environment for A.M. She expressed her concerns about Merwether's being the primary custodian, explaining that he was too reliant on his mother for care and assistance of A.M.; here, she complained that his mother had serious health problems that required a significant amount of narcotic medications. She also objected to the fact that Merwether lived in a three-bedroom home with his mother, his mother's boyfriend, and his adult brother.
After the hearing, the circuit court entered an order in which it summarized the testimony of the parties and witnesses. In pertinent part, the court wrote as follows:
[Merwether and Cooper] lived together for about seven months after [the] minor child, A.M., was born. At that time, [Merwether] worked and paid [the] bills of the household. [Cooper] did not work during this period of cohabitation. The parties separated around September 2015 and agreed to a child visitation schedule. [Merwether] testified that he kept the child for a period of 71 days without contact from [Cooper] because of living arrangement problems encountered by [Cooper]. [Merwether] testified that 71 days passed with no contact from [Cooper] about minor child, A.M. [Cooper] disputes the length of time absent, as well as witnesses who testified on behalf of [Cooper].[ ] The court carefully observed and listened to the testimony on this issue, as well as all other testimony. The Court believed [Merwether] and considers the actions of [Cooper] in being absent from her child at a young age for that extensive period of time, very detrimental conduct concerning the health, welfare and safety of a minor child.
....
Each party presently maintains an appropriate home for the minor child, although the mother lives in an apartment complex, which apparently has some history of violent crime. The child has assistance in care while in the custody of the father from her paternal grandmother. The mother of the child has apparently not worked since prior to the child's birth. Her present husband appears to be an appropriate stepparent and appears to have the child's best interests at heart.
The father presented significant evidence indicating that the mother had frequently refused to return the child when agreed or otherwise communicate with the other parent regarding the minor child. This same evidence indicated a willingness on the father's part to accommodate the mother's visitation with the minor child.
Based upon all of the foregoing facts, evidence, and credibility of [Cooper] regarding her period of absence from her young child, the Court finds that primary physical custody of the minor child is appropriate with the father and awards same to him as plaintiff. [Cooper] shall have visitation pursuant to the standard Schedule A visitation of the 1st Judicial District, a copy of which shall be attached to this Order.
From this order, Cooper brings the instant appeal.
Cooper appeals an initial paternity and custody action. Arkansas Code Annotated section 9-10-113(a) (Repl. 2015) provides that when a child is born to an unmarried woman, legal custody of that child shall be in the woman giving birth to the child until the child reaches eighteen years of age unless a court of competent jurisdiction enters an order placing the child in the custody of another party. As such, Cooper was the statutory custodian of A.M. at her birth. Under the paternity statute, a biological father, like Merwether here, may petition the circuit court in the county where the child resides for custody of the child. Ark. Code Ann. § 9-10-113(b). The circuit court may then award custody to the biological father on a showing of three factors: (1) the father is a fit parent to raise the child; (2) he has assumed his responsibilities toward the child providing care, supervision, protection, and financial support for the child; and (3) it is in the best interest of the child to award custody to the biological father. Ark. Code Ann. § 9-10-113(c)(1)-(3). On appeal in this case, Cooper argues only that the circuit court erred in finding that it was in A.M.'s best interest for custody to be awarded to Merwether.
Arkansas law is well settled that the primary consideration in child-custody cases is the welfare and best interest of the children; all other considerations are secondary. Li v. Ding , 2017 Ark. App. 244, 519 S.W.3d 738. This court has further made clear that it considers the evidence de novo but will not reverse unless the circuit court's findings are clearly erroneous or clearly against the preponderance of the evidence. Faulkner v. Faulkner , 2013 Ark. App. 277, 2013 WL 1857687 ; Delgado v. Delgado , 2012 Ark. App. 100, 389 S.W.3d 52. Findings are clearly against the preponderance of the evidence when the court is left with an irrefutable and express belief that a mistake has occurred. Faulkner, supra.
Importantly, this court gives deference to the superior position of the circuit court to view and judge the credibility of the witnesses in these matters. Id. Deference to the circuit court is even greater in cases involving child custody, as a heavier burden is placed on the circuit court to "utilize to the fullest extent its powers of perception in evaluating the witnesses, their testimony, and the best interest of the child." Delgado, supra. Child-custody cases are unique because there are no other cases in which the superior position of the circuit court to assess witness credibility carries as much weight. Id.
Cooper raises several subpoints in her best-interest argument, asserting that (1) she is a fit and proper mother, (2) her home and financial resources would better serve the best interest of A.M., and (3) Merwether's "combative nature" in visitation did not warrant custody being placed with him. Finally, she argues that the circuit court's reliance on a "short absence" from A.M. was in error because that absence was justifiable.
As to Cooper's arguments that she is a fit and proper parent with appropriate housing and financial resources, the circuit court made no finding that she was not. Indeed, as set out in the circuit court's order quoted above, it specifically found that she maintained a proper home and that her husband was a good stepparent who had A.M.'s best interest at heart. The court did find that Cooper had not worked since before A.M. was born, but the order made no finding or comment that this fact necessarily militated against Cooper's having custody. Cooper essentially asks us to weigh the evidence presented at trial differently than the circuit court did. That, however, is not a practice in which this court will engage. See Wilhelm v. Wilhelm , 2018 Ark. App. 47, at 6, 539 S.W.3d 619, 624.
Her next argument suffers from the same infirmity. She maintains that Merwether exhibited "combative conduct" with respect to visitation and was "unconcerned about inconvenience" to Cooper. Here, she points to a series of text messages that she and Merwether exchanged about Christmas visitation in 2016 and asserts that they show she was the reasonable party when it came to arranging holiday visitation. The circuit court, however, read those messages and interpreted them to indicate that Cooper was the recalcitrant party. The court also made a specific finding, based on the evidence, that Cooper was uncooperative about returning A.M. to Merwether and in communicating with him, while Merwether showed a willingness to accommodate Cooper's interactions with the child. Cooper again asks us to reweigh the evidence and the credibility of the testimony, which we will not do. Id.
Finally, Cooper argues that the circuit court placed undue importance on the period of time during which she did not see A.M. At trial, Merwether testified that Cooper did not see A.M. at all for a period of seventy-one days in the fall of 2015. His testimony about the length of the separation was corroborated by the testimony of his mother, Cindy Merwether. Cooper denied having gone for a span of seventy-one days without seeing A.M.
She admitted, however, that she let Merwether keep A.M. for three consecutive weeks, explaining that this was an agreed-on extended visitation because the apartment she was renting had no heat, and she was temporarily living in a camper trailer as a result.
Cooper asserts that the court's emphasis on this factor was erroneous because the court did not consider her reasons for being absent. The court did, however, acknowledge Cooper's insistence that she "did not disappear for seventy-one days." It simply found her testimony to lack credibility and stated that it found her absence for an "extensive period of time" to be detrimental to A.M.'s best interest. That the court did not enunciate more specific reasoning does not mean it did not consider Cooper's testimony about her circumstances. See, e.g. , Woods v. Woods , 2013 Ark. App. 448, at 7, 2013 WL 4558126 (noting that the mere fact that the circuit court did not make specific findings about statutory factors in a custody case did not mean that the court gave no consideration to those factors). This credibility determination lay squarely with the circuit court, and we will not disturb it on appeal. See Glisson v. Glisson , 2018 Ark. App. 21, 538 S.W.3d 864.
On our de novo review, we hold that the circuit court did not clearly err in finding that placing custody of A.M. with Merwether was in the child's best interest.
Affirmed.
Hixson and Murphy, JJ., agree.
Merwether's paternity complaint asserted that they cohabited until April or May of 2015; Cooper alleged in her counterclaim that they separated in February 2015.
Cooper did not contest paternity.
Cooper's friend Whitney Humes testified that she saw Cooper and A.M. three or four times a week, and there had never been a two-and-a-half-month period that she did not see A.M.
Although the parties were clear in their testimony that the alleged lapse of time was seventy-one days, Cooper's brief repeatedly refers to a period of "eighty-one" days.
In this portion of her brief, Cooper cites numerous inapposite cases and statutes, most of which deal with adoptions in which the court must determine whether a natural parent's consent is required. See, e.g. , Ark. Code Ann. § 9-9-207 (Repl. 2015); In re Adoption of Glover , 288 Ark. 59, 702 S.W.2d 12 (1986) ; Neel v. Harrison , 93 Ark. App. 424, 220 S.W.3d 251 (2005) ; Taylor v. Hill , 10 Ark. App. 45, 661 S.W.2d 412 (1983). | [
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WAYMOND M. BROWN, Judge
Appellant appeals from the circuit court's August 30, 2017 order. On appeal, he makes a number of arguments that can be summarized as the circuit court erred in awarding a one-half interest in interpleaded proceeds to Laquita Parker because her lien was (1) subordinate to that of the Internal Revenue Service (IRS) and (2) void as it was against the operating agreement of 45 Development Group, LLC (45 Development). We affirm.
In its amended and restated operating agreement of October 13, 2000, 45 Development named Richard Srygley as a member thereof with a 40 percent ownership interest therein. Though married since July 18, 1981, Laquita Srygley Parker was not a named member and had no ownership interest in 45 Development.
Srygley and Parker were divorced by decree entered on August 30, 2007. Therein, it was stated:
8. That all matters of property, both marital and non-marital, jointly and otherwise have been concluded by the parties to this action by agreement; that this Court has reviewed a copy of the Child and Custody and Property Settlement Agreement filed herein; that such Agreement is fair and equitable and is adopted by this Court. Such agreement is incorporated, but not merged, herein as fully and as effectively as if set forth word for word herein.
The "Child Custody and Property Settlement Agreement" (PSA), as is pertinent to this case, stated:
11. RCS LAND COMPANY, LLC: The parties acknowledge that there is in place a certain limited liability company known and described as the RCS Land Company and that all the interests in RCS Land Company is owned by the two irrevocable trusts established for the use and benefit of the children born of this marriage as such trusts are described in Paragraph 1. With respect to RCS Land Company, LLC, the parties agree as follows:
....
The parties acknowledge that RCS Land Company, LLC has been operated in the past so that it presently generates a significantly positive cash flow. Based on the present cash flow available to RCS Land Company, the parties agree that the Wife will receive the sum of Fourteen Thousand Dollars ($14,000.00) per month beginning September l, 2007. It is anticipated that the cash flow of the company will increase over the coming years and, in the event of such increase, the Wife will receive a corresponding increase of the monthly payment to her.... The parties further agree that the Husband shall be entitled to withdraw an equivalent amount to what the Wife is drawing each month, assuming that the cash is available, but that, under no circumstances, can the Husband draw from RCS Land Company an amount in excess of the amount drawn by the Wife.
....
12. SECURITY FOR PAYMENT TO WIFE: The parties acknowledge that the personally [sic] guaranty of the Husband set out in the preceding paragraph and subparagraphs of this agreement shall be secured by the Wife claiming a security interest in the Husband's interest in the Quarry Shopping Center[ ] in Fort Smith, Arkansas. Specifically, if RCS Land Company, LLC fails to make payment of monthly payment when due and the Husband defaults on his personal guaranty, then the Wife may pursue the Husband's interest in the Quarry Shopping Center in Fort Smith, Arkansas. In the event that the shopping center is sold, the parties' interest in the proceeds of such sale shall be divided as follows:
a. That the secured debt on the Quarry Shopping Center will be paid.
b. That a certain line of credit in the face amount of $1 million will be paid to the extent that proceeds have been drawn against such line of credit as of August 3, 2007. Any proceeds drawn against such line of credit subsequent to August 3, 2007, shall be paid individually by the Husband.
c. The Wife shall receive one-half (1/2) net proceeds of the sums of money remaining.
d. That the Husband's interest in the sums remaining shall be used to purchase a certificate of deposit in the name of the Husband with such certificate of deposit being pledged against the Husband's obligations set out in the preceding paragraph of this agreement.
....
14. OTHER BUSINESS INTERESTS: The parties acknowledge and agree that, either individually or jointly, they are involved in other businesses standing either in personal names or through limited liability companies, corporations or other such businesses entities. All such other business entities not specifically referred to herein, shall continue to be owned by the parties in the same fashion and in the same percentages as they are owned on this date excepting that the Wife shall own one-half (1/2) of any business interest standing in the Husband's name as of the date hereof. Specifically, the parties acknowledge that the Wife is entitled to one-half (1/2) of the parties share of the partnership known and styled as S & S Partnership for a total of twenty-five percent (25%) of the total partnership but, with respect to any other business entity or property, the parties' intent is to divide the interest owned by the parties equally between them excepting only for businesses and properties specifically referred to herein.
Parker filed multiple petitions for contempt at some point in the case. Following a hearing held on December 18, 2014, the circuit court entered an order on January 28, 2015, in which it found that "all [Srygley's] payments [were] current and that there [was] no contempt as to all motions previously filed [therein]."
However, the circuit court also entered an order on December 27, 2016, finding Srygley in contempt. The order further stated:
2. Richard C. Srygley agrees to sell his interest in 45 Land Development, LLC, for the sum of Two Million Dollars. The sale proceeds shall go first to pay the directly secured debt of First National Bank of Fort Smith with the balance to be interpled for court determination of the rights of all parties. If the sellers are willing to delay the sale until after January 1, 2017, the sale will be concluded as soon as reasonably possible after that date. If for any reason the seller indicates they are not agreeable to postponing the sale until January 1, 2017, Richard Srygley shall complete the sale in 2016. If for any reason Richard C. Srygley fails or refuses to sign the sale agreement, the Clerk of this Court is hereby appointed as his agent for the purpose of signing an agreement to sell his share of 45 Land Development, LLC, for Two Million Dollars.
3. Judgment is entered in favor of the Plaintiff in the sum of Two Million Dollars. This sum includes One Million Five Hundred Thousand Dollars that is subject to dispute. The Plaintiff believes that she is owed the sum of Four Million Nine Hundred Thousand Dollars more or less and the Defendant believes the correct amount to be much less and potentially zero. Either the Plaintiff or Defendant can petition this Court to fix and determine the final amount owed by Defendant to Plaintiff and if the Court's ruling so holds, remit up to One Million Five Hundred Thousand Dollars of the Two Million Dollar Judgment granted herein or award such greater amount as is established by Plaintiff. In all other respects this Judgment shall be deemed as final and conclusive of the rights of the Plaintiff.
At some date after this order, which is not made known by Srygley's brief, the remaining members of 45 Development bought out Srygley's interest in 45 Development. 45 Development filed an interpleader petition on January 18, 2017, against Srygley, Parker, the Internal Revenue Service (IRS), and the state of Arkansas' Department of Finance and Administration (DFA). Noting that Srygley's 40 percent membership interest was $2,000,000, the petition stated that 45 Development possessed $1,404,152.10 in proceeds, the ownership interest of which needed to be decided as between the named defendants; it disclaimed any interest in the proceeds. The circuit court entered an order interpleading the funds with the court clerk and releasing 45 Development from the matter on the same date.
Parker responded to the interpleader motion on February 7, 2017, asserting "an outright ownership of 1/2 interest" in the interpleaded funds in addition to the remaining one-half due to her $2,000,000 judgment against Srygley. She requested an order directing that all proceeds of the interpleader action be turned over to her. The DFA responded on March 6, 2017, stating that it had "no interest in this matter" and requesting to be dismissed without prejudice. Srygley responded on March 8, 2017, admitting the allegations of "paragraphs one through ten as such pertains to the sale of the Defendant's interest in 45 Development Group, LLC, payment of the joint debt of Defendant, Richard Srygley and Laquita Srygley, [to] First National Bank with the balance being held with this Court." He requested that the petition be dismissed. The IRS responded on March 22, 2017, requesting "recognition of its liens" and that the funds be ordered to be distributed to it.
On June 6, 2017, Parker filed a motion for summary judgment, and brief in support, asserting that Srygley "did personally guarantee his obligations" to Parker as contained in the PSA; he secured his obligations to her with a security interest in 45 Development doing business as the Quarry Shopping Center; and agreed that Parker was permitted to pursue his interest in 45 Development if he defaulted on his personal guarantee, after Srygley's debt to First National Bank was paid. Noting the circuit court's December 27, 2016 order on granting her a judgment of $2,000,000-which led to the filing of this action-and the fact that Srygley had defaulted on his obligation, Parker stated that there was "no necessity to hold such funds in so much as the default of Richard C. Srygley exceeds the amount." Accordingly, Parker sought summary judgment regarding entitlement to all the proceeds as against any claim of Srygley.
Srygley responded to Parker's motion on June 27, 2017, asserting that a question of material fact remained making summary judgment inappropriate. He stated that while Parker was "correct in her recitation of the Property Settlement Agreement and Mr. Srygley's resulting responsibilities[,]" she failed to take into account the contingent nature of the order which required one or either of the parties to petition the circuit court "to fix and determine the final amount." Accordingly, he argued that there was no way to say that Parker was or was not entitled to a specific amount; therefore, a question of material fact remained.
Srygley filed an amended response to Parker's summary-judgment motion on July 24, 2017, asserting that 45 Development's operating agreement disallows any member the right to sell, assign, transfer, encumber, etc., in any way all or part of their interest without approval by vote of the majority of the members; and that voluntary transfers were only allowed upon prior written unanimous consent of all other members of the company. Because "the funds Ms. Parker is referencing come directly from 45 Development" and the other members never gave consent to an assignment to Parker, Srygley argued that "any purported assignment" would be "void and unenforceable and would not constitute a lien on Mr. Srygley's interest." He went on to state that he was not contesting his debt to Parker, pursuant to the December 27, 2016 order-subject to a possible reduction and remittitur-but argued that Parker's claim was inferior to that of the IRS; and so the IRS should receive the full balance of its lien before any payment to Parker.
Following multiple notices for differing amounts for differing tax periods, on August 1, 2017, the Internal Revenue Service (IRS) sent a notice to Srygley advising him that his outstanding tax debt for three tax periods ending in 2011, 2012, and 2013, respectively, was $1,272,287.09. The IRS confirmed to Parker's counsel on August 2, 2017, that
in order to settle and compromise the priority issues in the above case, the IRS has agreed that Ms. Laquita Srygley Parker is entitled to one half of the funds that were paid into the Court Registry by 45 Development Group, LLC. In addition, IRS has agreed that Ms. Parker would be entitled to 32.5% of the remaining funds that are currently in the registry of the Court. Further, Ms. Parker has agreed that the IRS is entitled to 67.5% of the remaining funds. As a result, if the Court rules in Ms. Parker's favor, she would receive $930,294.61 and the IRS would receive $473,923.64 based upon the balance in the registry of the Clerk on July 31, 2017.
A hearing was held on August 3, 2017, after which the circuit court entered its order in the matter on August 30, 2017. Noting that "[t]he facts are not complicated and most, if not all, are uncontested[,]" it went on to find as follows:
Mr. Srygley sold his forty percent (40%) interest in Plaintiff for $2,000,000.00. There was an obligation owed to First National Bank of Fort Smith in the sum of $583,562.90 that was paid. On January 19, 2017, $1,404,152.10 was deposited into the Registry of the Court and since said date there have been transfers and deposits and that as of August 25, 2017, there is $1,404,218.25 in the Registry.
Ms. Parker wants what the Child Custody and Property Settlement Agreement provided her. That is, one-half (1/2) interest the proceeds of the Srygley sale with the remaining one-half (1/2) being held in trust.
Mr. Srygley wants the transfer to be held null and void because 8.1 of the LLC agreement prohibited voluntary transfers. However, it did not provide any remedy if 8.1 was violated. Further, Arkansas Code Annotated (A.C.A.) § 4-32-704 provides that unless provided otherwise the transfer may occur however the assignee may not become a member of the LLC. Further, Mr. Srygley argues that the IRS lien would have priority over Ms. Parker. However, as pointed out by Ms. Parker's attorney the IRS did not argue this point but rather simply requests that its lien be recognized.
The Court has little difficulty in deciding this case. The Court finds that the agreement entered into between the parties at the time of their divorce is valid and binding. Ms. Parker is awarded one-half (1/2) of the funds that are in the Registry of the Court. She is further awarded 32.5% of the remaining funds in the Registry of the Court. The balance of 67.5% of the funds remaining shall be paid to the IRS to be applied to Mr. Srygley's IRS debt.
The clerk of the court was also directed to issue the appropriate checks therein. The clerk issued checks to Parker and the IRS for $930,294.61 and $473.923.64, respectively, on August 31, 2017. This timely appeal followed.
Before we can reach the merits of this matter, we must first address Parker's assertion that Srygley is not the real party in interest. We agree.
Arkansas Rule of Civil Procedure 17(a) states, "Every action shall be prosecuted in the name of the real party in interest." A real party in interest is considered to be the person who can discharge the claim on which the allegation is based, not necessarily the person ultimately entitled to the benefit of any recovery. Srygley readily admitted below and before this court that he has no claim to the interpleaded proceeds. He admits that while he argues that all the proceeds should go to the IRS, the proceeds necessarily will go to either the IRS or Parker. He admits that no matter which entity receives the proceeds, he will still owe money to the other. Accordingly, the real parties in interest are the IRS and Parker.
Both the IRS and Parker were parties to the matter below and-as noted by Parker to this court-the IRS did not make any argument regarding the priority of its lien over Parker's claim. Furthermore, it chose to enter into a settlement with Parker regarding disbursement of the proceeds if she was successful in the matter, thereby mooting any potential priority argument. Srygley cannot make arguments for the IRS. Likewise, he cannot make arguments for 45 Development regarding the voidability of Parker's claim by its operating agreement. Only 45 Development, or members thereof, can make that argument. 45 Development was released from this matter in the circuit court's January 18, 2017 order-having made no argument regarding the voidability of Parker's claim-and Srygley is no longer a member of 45 Development as he sold his interest, the proceeds of which are now at issue. Accordingly, Srygley cannot speak for 45 Development.
Because Srygley has no ability to discharge any lien and makes arguments before this court that can be made only by other entities-entities that were parties to this matter yet chose not to make said arguments-he is not the real party in interest.
Affirmed.
Glover and Vaught, JJ., agree.
45 Development does business as the Quarry Shopping Center.
Parker's contempt motions are not in the record or brief; however, being irrelevant to the points on appeal, we do not order supplementation.
A claim for $593,562.90 from First National Bank of Fort Smith had been paid from the $2,000,000 proceeds. It is not clear whether this is that balance owed on the credit line referenced in paragraph 12b of the PSA.
No formal motion to be dismissed was ever filed.
The court notes that the sentence referenced by Srygley states, in full, "Either the Plaintiff or Defendant can petition this Court to fix and determine the final amount owed by Defendant to Plaintiff and if the Court's ruling so holds, remit One Million Five Hundred Thousand Dollars of the Two Million Dollar Judgment granted herein or award such greater amount as is established."
He also stated therein that "45 Development is a limited liability company that is in good standing and is registered to do business in Arkansas."
It appears that the circuit court addressed the merits without formally ruling on Parker's motion for summary judgment. However, ruling on the merits would necessarily require that it denied Parker's motion for summary judgment.
A supplemental order was entered on September 13, 2017, to dispose of $111.57 that remained as interest accrues on the initial amount.
Coleman v. Coleman , 2016 Ark. App. 324, at 11-12, 497 S.W.3d 688, 695 (citing Forrest Constr., Inc. v. Milam , 345 Ark. 1, 43 S.W.3d 140 (2001) ). | [
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MIKE MURPHY, Judge
Appellant Brittani Young appeals from the July 21, 2017 order of the Pulaski County Circuit Court adjudicating her children dependent-neglected, as well as from the order denying her motion for reconsideration. She argues that the circuit court erred in adjudicating her children dependent-neglected because appellee Arkansas Department of Human Services (DHS) failed to present sufficient evidence that she was unfit or that she abused her children. We affirm in part and reverse in part.
On May 28, 2017, DHS exercised an emergency seventy-two-hour hold on Young's three children, M.P. (DOB 8/16/2009), A.P. (DOB 9/4/2011), and K.B.1 (DOB 8/21/2014), based on the fact that Young's youngest child, K.B.2, passed away after having been in the care of Kwuan Bryant, Young's live-in boyfriend. On May 31, 2017, the circuit court entered an ex parte order of emergency custody. A probable-cause order was entered June 6, 2017, which stipulated that probable cause existed at the time the hold was exercised and continued to exist such that it was necessary that the children continue in the custody of DHS due to the family's history and allegations of physical abuse by an "unknown offender" as it related to K.B.2's death.
An adjudication hearing was conducted on July 5, 2017. Dr. Thomas James Abramo was the first to testify. He explained that he was the emergency-room physician who cared for K.B.2. Dr. Abramo said that K.B.2 was immediately taken to the resuscitation room when she arrived at the hospital because he observed she was without a pulse and was not breathing. He also observed that she had cloudy eyes, a low core temperature, and some bruising in her lower abdomen. He informed the circuit court that there was never an explanation provided as to what had actually happened to K.B.2. Dr. Abramo stated that he was informed that Young had been work and she came home to find K.B.2 not breathing. He also confirmed that there had been no formal cause-of-death determination because the autopsy report had not been completed at the time of the hearing.
Kwuan Bryant, K.B.1 and K.B.2's father, testified next. He was not appointed an attorney at the time. Bryant was informed of his Fifth Amendment right to remain silent and not testify, but he chose to testify. He testified that he lives with Young and had for approximately four years. He said the only time he spanked one of the children was two years ago when A.P. had gone to the bathroom in her pants but that he no longer spanks the children. He explained that he was sometimes responsible for watching the children; usually two days a week. He testified that there was a prior incident in which four-month-old K.B.2 fell off an ottoman while she was under his care. When Bryant was asked how K.B.2 died, he first denied knowing what happened; just that "she was sick." He further testified that on the day of her death, K.B.2 woke up around 10:30 a.m., and he fed her at 11:00 a.m. He explained that she vomited after he fed her, but he felt it was not bad enough to alert Young at work. Due to an incident at work, Young came home early. Bryant testified that they noticed K.B.2 did not look right, and they believed she was "drowsy from throwing up." He recounted that it was Young's idea to go to the hospital because K.B.2 had been sick the past three days. Bryant said he thought he could still hear the child breathing when they arrived at the hospital. In addition, he testified that he is currently on probation stemming from a 2013 charge of possession and fleeing.
Next, Dr. Karen Farst testified as an expert witness regarding pediatric abuse. She testified that she reviewed K.B.2's skeletal surveys and worked with DHS to do evaluations on K.B.2's siblings. She explained that K.B.2's skeletal scan showed she had some bone fractures. Dr. Farst elaborated that her rib fractures occurred at least two weeks prior to her death but could not provide an approximate date of the fractures in K.B.2's legs. Dr. Farst opined that the fractures were unusual for a child at that age and typically only happened as a result of an inflicted injury but that the fractures would not have caused K.B.2's death. She testified that she did not believe that K.B.2 had any "obvious medical conditions" that could be the bases for her injuries. Lastly, she explained that K.B.2's injuries would not have been obvious and visible to Young.
Lisette Yang, a forensic interviewer for the Children's Protection Center, testified after Dr. Farst. Yang had previously interviewed A.P. and M.P. about the discipline in their home. M.P. said her legal father spanked her with a belt and that Bryant spanked her with an extension cord. M.P. did not say how often this occurred. M.P. also explained that Young spanked her, but not to the level administered by her father or Bryant. M.P. also detailed to Yang that on the day of the incident, K.B.2 was "fine and suddenly, she was not fine." A.P.'s interview with Yang was similar to that of M.P. Lastly, Yang testified that neither child indicated that she felt unsafe around the parents in this case.
Andrea Carter, an investigator for the Arkansas State Police Crimes Against Children Division, testified that she was assigned to this case and that she had received a preliminary report that indicated the cause of death would be ruled a homicide as a result of blunt-force trauma to the abdomen.
Lastly, Cora Wilson, the assigned assessment worker for DHS, testified. Wilson testified with regard to the family's history with DHS prior to this case opening. She testified that before to this incident, the agency only had received two hotline calls-one in 2015 and the other in 2017. Wilson summarized DHS's involvement with this family in her affidavit in support of the dependency-neglect petition, which included the following:
Ref# 1854736 (April 7, 2017) A report was accepted for abuse involving [K.B.2] and unknown offender. The report states [K.B.2] had two black eyes and her jaw was swollen and [K.B.2] seemed very tired. [Bryant] said that he didn't know what happened but on Thursday, [Bryant] is saying that [K.B.2] fell off of an ottoman. Report was unsubstantiated.
Ref# 1725636 (January 15, 2015) The report listed [M.P. and A.P.], AO-Kwuan Patton [sic]. The report states [Young's] boyfriend punches the children on the head. Also the boyfriend whipped [A.P.] with a phone cord, leaving welts on her legs. The report was substantiated and an open Protective Services. The case was open and the following services provided: monthly home visits and parenting although the parenting was not completed. The case was closed on November 15, 2015.
At the conclusion of the testimony, the circuit court ruled from the bench that the children were dependent-neglected. The court explained that the major factors it considered were the unexplained death of K.B.2 and also the history given to Yang of the corporal punishment administered on A.P. and M.P. In its adjudication order, the circuit court found that the children were dependent-neglected based on the following:
[P]hysical abuse and parental unfitness of all of the juveniles, by the mother, physical abuse of all the juveniles by Kwuan Bryant, and parental unfitness of [K.B.1], by her father, Kwuan Bryant, based upon the unexplained death of [K.B.2], ... and the history of using corporal punishment by the mother and Kwuan Bryant, on the juveniles.
Following the entry of the adjudication order, Young filed a motion to reconsider detailing that the findings of physical abuse and parental unfitness against her were contrary to the oral rulings made at the adjudication hearing and not supported by the evidence. The motion also pointed out that the adjudication order did not mention that Young was not present when K.B.2 was harmed. The motion was not ruled on and was deemed denied after thirty days. This timely appeal followed.
Adjudication hearings are held to determine whether the allegations in a petition are substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(1)(A) (Supp. 2017). Dependency-neglect allegations must be proved by a preponderance of the evidence. Ark. Code Ann. § 9-27-325. In dependency-neglect cases, the standard of review on appeal is de novo, but we do not reverse the circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Samuels v. Ark. Dep't of Human Servs. , 2016 Ark. App. 2, at 6-7, 479 S.W.3d 596, 600. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In reviewing a dependency-neglect adjudication, we defer to the circuit court's evaluation of the credibility of the witnesses. Id. The focus of an adjudication hearing is on the child, not the parent; at this stage of a proceeding, the Juvenile Code is concerned with whether the child is dependent-neglected. Id. at 7.
While the focus of an adjudication hearing is on the child, a parent must appeal adverse rulings; otherwise, the parent will be precluded from appellate review of those rulings in an appeal from a subsequent order, such as a termination order. Ashcroft v. Ark. Dep't of Human Servs. , 2010 Ark. App. 244, at 8, 374 S.W.3d 743, 747. We have previously explained that
the process through which a parent or parents travel when a child is removed from their home consists of a series of hearings-probable cause, adjudication, review, no reunification, disposition, and termination. All of these hearings build on one another, and the findings of previous hearings are elements of subsequent hearings.
Osborne v. Ark. Dep't of Human Servs. , 98 Ark. App. 129, 136, 252 S.W.3d 138, 143 (2007).
On appeal, Young argues that the evidence was insufficient to support the court's finding that she had physically abused the children and was parentally unfit. She acknowledges that the status of dependency-neglect may remain with regard to Bryant's acts, but she asserts that the court erred when it specifically found that she was actually the offender of abuse and parental unfitness. Young correctly acknowledges that if the findings against her are permitted to stand, they could provide the basis for the termination-of-parental-rights ground that allows termination of parental rights when a circuit court has adjudicated a juvenile dependent-neglected as a result of abuse that could endanger the life of a child. Ark. Code Ann. § 9-27-341(b)(3)(B)(vi)(a ).
A dependent-neglected juvenile is one at substantial risk of serious harm as the result of, among other things, abuse or neglect. See Ark. Code Ann. § 9-27-303(18)(A)(ii) & (v). Arkansas Code Annotated section 9-27-303(3)(A) defines "abuse" by a parent or guardian, in pertinent part, as any injury that is at variance with the history given or any nonaccidental physical injury. "Parental unfitness" is not specifically defined in the Juvenile Code, but case law is clear that it is not necessarily predicated on the parent's causing some direct injury to the child in question because the Code's paramount concern is protecting dependent-neglected children in general. Bean v. Ark. Dep't of Human Servs. , 2016 Ark. App. 350, at 6, 498 S.W.3d 315, 318-19.
Here, the testimony and affidavit of facts do not support the circuit court's findings as to Young. While this court may use a circuit court's oral pronouncements to determine the intent behind its written orders, see Porter v. Ark. Dep't of Human Servs. , 2010 Ark. App. 680, 378 S.W.3d 246, we are unable to do so here. As noted in Young's motion for reconsideration, the circuit court's findings from the bench are in contrast with its findings reduced to writing in the adjudication order.
We first address the circuit court's finding of abuse. At the close of evidence, the circuit court said it was making a physical-abuse finding but not a parental-unfitness finding at that time. At that time, the major factors the court considered were the unexplained death of K.B.2 and the history of corporal punishment by the fathers. Neither of these findings pertained to Young. First, as to K.B.2's unexplained death, the circuit court stated that it was convinced that the "mother was not home, at least on the morning when this occurred or when the child became symptomatic." Thus, it is not implausible that Young, who was not present, could not provide a history for an event for which she did not witness. Next, the circuit court mentioned nothing of corporal punishment by Young; it named only the fathers. While we do have testimony from Yang that Young had previously spanked M.P. (though it was not to the extreme as Bryant's use of corporal punishment), the order purports that Young abused all of her children, which is simply not supported by the record. Further, we have testimony that the children did not feel unsafe around Young. Therefore, we reverse the circuit court's physical-abuse finding as to Young.
We next address the circuit court's finding of parental unfitness as to Young. While we do have evidence of DHS involvement with this family, none of it supports a finding of unfitness against Young. The 2017 DHS report was unsubstantiated and involved Bryant; the record made no mention of Young's appearance or involvement when K.B.2 fell off the ottoman. The 2015 DHS report, while substantiated, was closed less than a year later. Again, that report involved Bryant's using corporal punishment against the children and did not mention Young's harming the children. While evidence supported that K.B.2 was abused multiple times before her death, Dr. Farst testified that K.B.2's injuries would not have been obvious and visible to Young. The adjudication order's findings do not distinguish which facts specifically evidence Young's parental unfitness, and the record simply does not support the finding.
On the facts of this case, we cannot conclude that the allegations against Young were proved by a preponderance of the evidence. Thus, we reverse the physical-abuse and parental-unfitness findings as they relate to Young. We do hold that the record supports the dependency-neglect status of the children and that this family could benefit from services, so the adjudication itself is affirmed.
Affirmed in part; reversed in part.
Whiteaker and Hixson, JJ., agree.
The circuit court reasoned that Bryant was not entitled to an attorney because the children had not been removed from his custody; rather, they had been removed only from the mother's custody. | [
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BART F. VIRDEN, Judge
A Pulaski County jury convicted appellant Michael Mitchell of second-degree murder and first-degree battery, for which he received an aggregate term of thirty-four years' imprisonment. Mitchell does not challenge the sufficiency of the evidence supporting his convictions; rather, he argues that the trial court made two evidentiary errors: (1) the trial court abused its discretion by excluding evidence of the victim's reputation for violence in the community and (2) the trial court abused its discretion by not admitting his statement made under the present-sense-impression exception to the rule against hearsay. We agree with Mitchell's first point; therefore, we reverse and remand.
I. Trial Testimony
Shannell Holmes was married to the victim, Troy Holmes. Shannell had two teenage daughters at home, Ayanna and Asia, and Roderick Gulley, Shannell's cousin, was staying with the Holmes family. On the evening of December 27, 2014, Roderick began arguing and "tussling" with his baby's mother, Tatiana Curry, about their baby spending the night at the Holmes residence. Roderick "removed" Tatiana from the home, and the police were called. Troy came home when he learned of the confrontation but soon left again. Shannell reached an agreement with Tatiana and her sister, Anjanae Curry, that they could return after a couple of hours to pick up the baby.
The sisters left and picked up Mitchell and Anjanae's boyfriend, Shaheed Williams. The group drove to the local Walmart where they saw Roderick; Williams and Roderick had "back and forth words"; and both Mitchell and Williams chased Roderick through the store-Williams admitted that he "had plans to whoop [Roderick]." Anjanae recalled that Tatiana had said that she was going to get her baby because the baby was not with Roderick. The group then returned to the Holmes residence.
Tatiana went to the front door with Mitchell, while Anjanae and Williams stayed by the car on the street. Tatiana knocked on the door, and Mitchell, whom Shannell described as wearing "a camouflage monkey suit," began pounding on the door when no one answered. Shannell was home alone with her daughters and the baby, and she was frightened because Tatiana had arrived earlier than expected to pick up the baby and had not come alone. One of the daughters called Troy, who was nearby, and he quickly arrived back at the Holmes residence.
Shannell said that when Troy got out of the car, she heard him say, "What the fuck you in my yard for? Move around." She said that she did not see Troy with a weapon and did not hear Troy threaten Mitchell, but she suddenly heard pops and saw sparks coming from Mitchell's direction. Ayanna said that she was in her bedroom looking outside and saw Troy get out of the car. She said that she heard Troy say "[p]lease get the 'eff' out of my yard." Ayanna said that Troy was "walking casual like" up to the front door when the man wearing "a monkey suit" pulled a gun and shot Troy. Asia did not see what happened, but she heard Troy ask why people were in his yard, and she heard two gunshots. Derrick Beasley, who had arrived at the Holmes residence with Troy, said that Troy had told people "to get off in front of his door." He said that he did not see Troy swing at anyone but saw Mitchell walk from the front door back to the car and then heard a gunshot.
Tatiana said that, when Troy drove up, Mitchell ran back to the street and that Troy was arguing with Mitchell, Williams, and Anjanae. She heard Troy say "[g]et away from my house with that B.S." Tatiana described Troy as "pretty upset" and said that he was cursing. She was talking with Shannell about the baby when she heard gunshots behind her. Anjanae testified that, while Tatiana and Mitchell were at the front door of the residence, "some big guy pulls up and he was like he's going to beat our ass." She said that she and Williams then got out of the car and that Williams and Troy "square[d] up" to fight. Anjanae said that she was afraid of Troy because he had "charged" at them. According to Williams, Tatiana went to the front door alone to get the baby. He said, "[Troy] jumped out of the car. He started cursing and stuff and threatening us, telling us he going to beat our ass and shit like that. He ain't scared of nobody and stuff like that. He came rushing towards people." Williams further testified that Troy "didn't have no good intentions."
The testimony reveals that, after the confrontation in the front yard, Troy ran inside the Holmes residence where he collapsed. Everyone followed Troy inside the home; another shot was fired; and a brawl ensued, during which Asia was struck on the head with a heavy object, and she later discovered that she had gunshot wounds on both thighs. The Curry sisters, Williams, and Mitchell got back into their car and drove away from the scene. Williams said that, when they got to his mother's house, "everybody was rattled up and shooken up and stuff" and that he took the gun away from Mitchell, who was shaking and scared.
The medical examiner testified that Troy died of a gunshot wound to the torso and that he weighed 253 pounds, was six feet two, and had a blood-alcohol level of 0.163.
The jury was instructed on the defense of justification. Mitchell alleged that deadly physical force had been necessary to defend himself, Williams, or Anjanae. The jury was instructed that the defense was available only if (1) Mitchell reasonably believed that Troy was committing or about to commit a felony battery with force or violence and (2) Mitchell used only such force as he reasonably believed to be necessary.
II. Standard of Review
The decision to admit or exclude evidence is within the sound discretion of the trial court, and this court will not reverse a trial court's decision regarding the admission of evidence absent a manifest abuse of discretion. Jones v. State , 2011 Ark. App. 324, 384 S.W.3d 22. An abuse of discretion is a high threshold that does not simply require error in the trial court's decision, but requires that the trial court acted improvidently, thoughtlessly, or without due consideration. Id. Moreover, an appellate court will not reverse a trial court's evidentiary ruling absent a showing of prejudice. Id.
III. Discussion
A. Reputation for Violence
Evidence of a person's character or a trait of his or her character generally is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion. Ark. R. Evid. 404(a). There is, however, an exception for evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor. Ark. R. Evid. 404(a)(2). In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. Ark. R. Evid. 405(a). On cross-examination, inquiry is allowable into relevant specific instances of conduct. Id. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of his or her conduct. Ark. R. Evid. 405(b).
The following colloquy occurred at the hearing on Mitchell's motion in limine:
[ DEFENSE COUNSEL ]: I guess we've got two preliminary issues, Your Honor. One is whether we can put on reputation evidence of the victim's trait for violence through members of the community, that he doesn't know about. I think that's our issue. And I'm saying under 405(a).
THE COURT : That who doesn't know about?
[ DEFENSE COUNSEL ]: That Mr. Mitchell doesn't know about. It looks like there were several cases in this court where [Troy Holmes] was convicted of domestic battery third and felony terroristic threatening. And I found three other cases where he has been convicted of domestic battery.
Based on that, I found a Mr. Dumas who was in this court and I brought him here today just in case-who would say he knew Mr. Holmes, has know[n] Mr. Holmes all his life. Mr. Holmes was married to his daughter. Mr. Holmes beat up his daughter. Mr. Holmes threatened to kill him. He talked to other members in the community, his neighbors, about Mr. Holmes. They also expressed a view that Mr. Holmes was a violent person, and had threatened them. I would then ask him what is your view of Mr. Holmes' reputation in the community. And he would say he's a violent person, not a peaceful person, which-I'm contending that you can do both. We can-because that's one of the essential elements.
The trial court denied the motion. At trial, defense counsel made the following proffer of evidence:
I advised the court that I had a witness named David Dumas who Mr. Holmes had committed a terroristic threatening against and was convicted in 2000-in case 2009-3257. Mr. Dumas would've testified that he knew Mr. Holmes because Mr. Holmes was married to his daughter, lived at his house in the community in Little Rock. And that he knew of Mr. Holmes' violent character, had talked about his violent character with other people in the neighborhood who had advised Mr. Holmes [sic] that they were also aware of his violent characteristics. And Mr. Dumas would have testified that Mr. Holmes had a character trait of violence. And I would just submit this case file concerning Mr. Holmes' conviction concerning the terroristic threatening of Mr. Dumas and it's marked as Defendant's Exhibit 6.
On appeal, Mitchell argues that the trial court erred in excluding evidence of Troy's reputation for violence because it was a pertinent trait of character and was relevant to show the jury who the aggressor was in the confrontation because the jury heard two conflicting versions. He argues that, when self-defense is asserted, a victim's reputation for violence is admissible.
In McClellan v. State , 264 Ark. 223, 570 S.W.2d 278 (1978), McClellan alleged self-defense in the death of a man named Sitz. McClellan sought to introduce testimony by a witness, Frost, involving a specific prior act of aggression by the victim against Frost, but the trial court excluded the evidence. Our supreme court stated,
In the case at bar the question, then, is whether Sitz's character as an aggressive person was "an essential element" of McClellan's defense of self-defense. Obviously it was not. One might plead self-defense after having killed the most gentle soul who ever lived. In such a situation the decedent's character as a possible aggressor is being used circumstantially, not as a direct substantive issue in the case. The trial judge was therefore correct in disallowing the proffered proof of a specific instance of aggression on the part of the decedent.
McClellan , 264 Ark. at 227, 570 S.W.2d at 280.
In Halfacre v. State , 277 Ark. 168, 639 S.W.2d 734 (1982), Halfacre alleged self-defense in the shooting deaths of two victims. The trial court admitted testimony as to the reputations of the two victims under Rule 405(a), and it also admitted testimony about specific prior violent acts of the victims, of which Halfacre did have knowledge, under Rule 405(b), because it was probative of what Halfacre reasonably believed and was relevant to his claim of self-defense. The trial court, however, disallowed testimony of specific prior violent acts of the victims, of which Halfacre was not aware. Halfacre argued that the trial court erred in excluding evidence of specific violent acts because it was relevant to the issue of who was the aggressor. Halfacre relied on language in Smith v. State , 273 Ark. 47, 616 S.W.2d 14 (1981), in which the supreme court stated,
Evidence of a victim's violent character, including evidence of specific violent acts, is admissible where a claim of justification is raised. Such evidence is relevant to the issue of who was the aggressor and whether or not the accused reasonably believed he was in danger of suffering unlawful deadly physical force.
Smith , 273 Ark. at 49, 616 S.W.2d at 15.
The Halfacre court noted that
[a]lthough the language itself in Smith is open to interpretation, the facts in Smith were significantly different from the facts in this case as to leave no doubt as to the meaning of those words. In Smith , the trial court had excluded not only evidence of incidents defendant knew of but also incidents directed against the defendant. In sharp contrast are the specific acts that appellant in this case proffered that not only did not involve the appellant but were incidents that he had no knowledge of. Given the facts in Smith , the plain language of the rules and our recent decision in McClellan , supra , we find no reason to give Smith the more expansive reading that appellant suggests.
Halfacre , 277 Ark. at 171, 639 S.W.2d at 736.
In Britt v. State , 7 Ark. App. 156, 645 S.W.2d 699 (1983), Britt was charged with first-degree battery after he shot a man in the back. He alleged the defense of justification. The trial court refused to permit him to prove a violent character trait of the victim by a specific instance of prior violent conduct, which was not shown to have been within the knowledge of the defendant. In affirming Britt's convictions, this court stated,
In those cases in which the specific acts were directed at the defendant or were within his knowledge before the crime, they are admissible as being probative of what he reasonably believed and therefore directly relevant to his plea of self-defense. Testimony of specific acts not shown to have been within the knowledge of the defendant are not directly probative of defendant's beliefs. It was not error for the trial court to restrict character trait evidence to reputation and opinions in the case now before us. It is noted that the trial court did properly admit reputation evidence tending to show the victim's trait for violence as probative of the issue of who was the aggressor.
Britt , 7 Ark. App. at 161, 645 S.W.2d at 702.
Here, the State counters Mitchell's argument, asserting that
[d]espite Appellant's claims that Mr. Dumas would testify to victim Holmes's reputation in the community, which may have been allowable to show who was the aggressor, it is clear from the record and his proffered evidence that he intended to offer circumstantial evidence from past instances to show that Holmes acted in conformity therewith in this instance.
Defense counsel told the trial court that he sought to admit testimony about Troy's reputation for violence in the community under Rule 405(a). By mentioning specifics about the charges against Troy, defense counsel was showing the trial court the basis for Mr. Dumas's opinion that Troy was a violent person. To the extent that defense counsel said that Troy's violent character was "an essential element" of his defense of justification, he was wrong given the holding in McClellan, supra. Because Mitchell was unaware of any specific instances of violent conduct by Troy, evidence in that regard could not have had any bearing on Mitchell's claim of self-defense, i.e., what he reasonably believed. While evidence of specific violent acts by Troy was inadmissible because Mitchell had no knowledge of them, Mitchell was entitled to introduce testimony about Troy's reputation for violence in his community because that evidence was probative of who was the aggressor. Rule 405(a) clearly permits admission of such evidence, and the State essentially concedes that testimony about Troy's violent reputation was admissible. The trial court erred in not permitting Mitchell to offer such testimony.
Before an evidentiary error may be declared harmless, the reviewing court must conclude that the error is slight and the remaining evidence of a defendant's guilt is overwhelming. Anderson v. State , 71 Ark. App. 200, 33 S.W.3d 173 (2000). Mitchell argues that the trial court's ruling was prejudicial because a critical issue was whether it was Mitchell or the victim who was the first aggressor. We agree and conclude that the remaining evidence was not overwhelming where the issue of who was the aggressor hinged on the credibility of the witnesses. Green v. State , 59 Ark. App. 1, 953 S.W.2d 60 (1997). Although there was testimony that the victim had threatened and rushed those in the yard, that testimony came from Mitchell's friends. On the other hand, evidence was admitted that portrayed Mitchell as the aggressor in that there was testimony suggesting that Mitchell, Williams, and the Curry sisters were angry when they went to pick up Tatiana's baby from the Holmes residence and testimony from Troy's family and friend that Mitchell shot Troy without provocation. Because the trial court's ruling, which excluded evidence of Troy's reputation for violence in the community, prevented Mitchell from offering additional proof from a disinterested witness that the victim was the aggressor, we cannot say that this error was harmless.
B. Present-Sense Impression
Arkansas Rule of Evidence 803(1) provides that present-sense impression is an exception to the rule against hearsay. A present-sense impression is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. The statement must be contemporaneous or nearly contemporaneous with the event. Brown v. State , 320 Ark. 201, 895 S.W.2d 909 (1995).
Defense counsel sought to introduce a statement made by Williams during a police interview in which he said that Mitchell told him in the car as they fled from the scene that he had shot Troy because he was scared and because Troy kept coming toward him. At trial, defense counsel argued that this statement occurred immediately after the confrontation and during the drive away from the scene. The trial court said, "Immediately has to be immediately," and would not allow the statement into evidence.
On appeal, Mitchell argues that the trial court erred in excluding the statement because Mitchell made the statement to Williams in the car immediately after the shooting, and it explains and describes the shooting of Troy as Mitchell perceived it. Mitchell argues that excluding such testimony was prejudicial to his defense.
We cannot say that the trial court abused its discretion in excluding this testimony. We agree with the trial court that the statement did not qualify as a present-sense-impression exception. The evidence indicated that after the shooting in the front yard, Troy ran into the residence; everyone followed Troy into the house; Troy collapsed; at least one more shot was fired; one of Shannell's daughters dragged Troy into the hallway; a brawl ensued; Asia was struck on the head and suffered gunshot wounds to her thighs; Tatiana got the baby and met the others in the car; and then the group drove to the home of Williams's mother, which was an unknown distance from the Holmes residence. It was during this car ride that Mitchell made the statement to Williams. The statement was not shown to have been made while Mitchell was perceiving the event or immediately thereafter. In any event, Williams was permitted to testify that Mitchell was scared and shaking after the confrontation and that Troy had rushed at people in his front yard.
Reversed and remanded.
Abramson and Whiteaker, JJ., agree.
The sentences for each offense were enhanced for employing a firearm as a means of committing the offense and for committing the offense in the presence of a child.
See Ark. Code Ann. § 5-2-607 (Supp. 2017). | [
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PHILLIP T. WHITEAKER, Judge
Jonathan Jacob Buck appeals a Sebastian County Circuit Court order terminating his parental rights to MT('07), JT('08), MT('09), and JT('14). He argues that the termination order should be reversed because he was denied his statutory right to counsel. Further, because his paternity was never established as to MT('07) and JT('08), he argues that there was insufficient evidence to support termination of his parental rights as to them. Because Buck was denied his statutory right to counsel, we reverse the order terminating his parental rights and remand for further proceedings.
I. Facts
Buck is married to Penelope Thomas-Buck, who is the mother of eight children-MT('01), JT('02), MT('04), JT('05), MT('07), JT('08), MT('09), and JT('14). The Arkansas Department of Human Services (DHS) has a history with the family going back to October 2011. Four years later, in October 2015, DHS received a referral alleging environmental neglect regarding Buck and Thomas-Buck. DHS made a true finding of the allegations and a protective-services case was opened in November 2015.
On May 20, 2016, while the protective-services case was open, DHS investigated a report that a sex offender was residing in the Buck/Thomas-Buck household. Buck was in the home when DHS arrived to conduct its investigation. Both Buck and Thomas-Buck disclosed to DHS that they were aware that their guest is a level 3 sex offender. DHS also found the house to be in a "disgusting, unsanitary and extremely unsafe condition" for the children. Based on the parents' poor compliance with the protective-services case plan, including the deplorable condition of the home, the inability to maintain a clean and appropriate home for the children, and the parents' failure to protect the children from a sex offender, DHS exercised a seventy-two-hour hold on the children and removed the children from both Buck and Thomas-Buck. The court subsequently adjudicated the children dependent-neglected and ultimately terminated Buck's parental rights to MT('07), JT('08), MT('09), and JT('14).
II. Right to Counsel
For his first point on appeal, Buck argues that he was denied his statutory right to counsel pursuant to Arkansas Code Annotated § 9-27-316 (Supp. 2017). Under the juvenile code, the State of Arkansas has established that a parent has a right to be represented by counsel at all stages of dependency-neglect proceedings. Ark. Code Ann. § 9-27-316(h)(1)(A) (stating unequivocally that "[a]ll parents and custodians have a right to counsel in all dependency-neglect proceedings"). The State of Arkansas has gone further and established a statutory right to the appointment of parent counsel. Specifically, section 9-27-316(h)(1)(B) provides that parents from whom custody is removed shall have the right to be appointed counsel, and the court shall appoint counsel if the court makes a finding that the parent or custodian from whom custody was removed is indigent and counsel is requested by the parent or custodian. In fact, section 9-27-316(h)(1)(C) states that parents shall be advised in the dependency-neglect petition or the ex parte emergency order, whichever is sooner, and at the first appearance before the court, of the right to counsel and the right to appointed counsel, if eligible, and that, as required under section 9-27-314, a circuit court shall appoint counsel in an ex parte emergency order and shall determine eligibility at the commencement of the probable-cause hearing. Ark. Code Ann. § 9-27-316(h)(1)(C)(i), (ii).
Under the facts presented here, Buck was clearly entitled under the statute to appointed counsel from the very outset of these proceedings but was not provided one. Buck was living in the home at the time of removal. DHS filed a petition for emergency custody and dependency-neglect alleging that Buck is the legal father of MT('09) and JT('14) and the putative father of MT('07) and JT('08) and that removal was from both Buck and Thomas-Buck. However, the affidavit DHS attached in support of the petition recited that custody was removed from Thomas-Buck only. The court then entered an ex parte order for emergency custody, containing the language of section 9-27-316(h)(1)(C) -that the parents had a right to an attorney at each stage of the proceedings and that legal assistance could be obtained (1) by retaining private counsel, (2) by contacting Legal Services, or (3) if indigent, by requesting that the court appoint legal counsel. The court then made a preliminary finding based on the affidavit of DHS that the children were removed from the custody of Thomas-Buck, that she was indigent, and that she was entitled to appointed counsel. The court made no such finding as to Buck in the ex parte order.
A probable-cause hearing was held on June 7, 2016; Buck was present but was not represented by counsel. The court entered an order finding probable cause based in part upon "Jonathan Buck ... allowing a sex offender to stay in the home with the juveniles" and ordering Buck to comply with certain conditions. The court's probable-cause order does not address Buck's eligibility for appointment of counsel.
Throughout the remainder of the proceedings (i.e., adjudication, review, case staffing, and permanency planning), Buck was present but unrepresented by counsel. When the court changed the goal to termination of parental rights, Buck was appointed counsel and was represented by counsel at the termination hearing.
Buck argues that the trial court erred when counsel was not appointed until the goal of the case was changed to termination of parental rights and that the failure to appoint counsel at the outset tainted the entire dependency-neglect proceeding. Buck is correct that the trial court erred by not appointing him counsel from the outset of the dependency-neglect proceedings under Arkansas law. DHS does not challenge Buck's assertion that he was entitled to counsel at the beginning of the dependency-neglect proceedings and that the failure to appoint counsel was error. Rather, DHS denies that this error tainted the entire dependency-neglect proceeding and that reversal is warranted. Instead, DHS posits that the failure to appoint counsel was harmless error given that Buck was subsequently appointed counsel to represent him at the termination hearing and that he was so represented.
In discussing harmless error, we note that there are two separate and distinct rights to counsel in dependency-neglect proceedings. First, a parent may have a due-process right to counsel in dependency-neglect proceedings. The United States Supreme Court has found that a parent's due-process right to counsel in dependency proceedings is not absolute, but must be determined, on a case-by-case analysis, on the basis of fundamental fairness-(1) when the case presents a specially troublesome point of law and (2) when presence of counsel would have made a determinative difference. See Lassiter v. Dep't of Soc. Servs. , 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981). Second, a parent may have a statutory right to counsel conferred by the State. Unlike the due-process right to counsel, which arises only if the circumstances of each particular case indicate that fundamental fairness requires the appointment of counsel, this State-conferred statutory right is governed by the certain defined circumstances contained within the statute. On appeal, Buck argues only that he was denied his statutory right to counsel under Arkansas Code Annotated section 9-27-316.
As noted above, DHS does not dispute that Buck was entitled to counsel at the onset and the failure to provide him counsel was error, but it claims instead that the error was harmless. Essentially, DHS takes the position that all the evidence that led up to the termination was presented at the termination hearing. DHS asserts that this evidence clearly proved that Buck had a history of aggressive behavior, domestic violence, substance abuse, criminal involvement-including incarcerations, and noncompliance with court orders. Since Buck had the benefit of court-appointed counsel when this evidence was presented, DHS contends that any error of the court in failing to appoint him counsel at earlier stages of the proceedings was harmless. We cannot agree that such a failure was harmless error.
DHS cites Briscoe v. Arkansas Department of Human Services , 323 Ark. 4, 912 S.W.2d 425 (1996), in support of its argument that any error in the trial court's failure to appoint counsel prior to termination was harmless and therefore should not result in a reversal. In Briscoe , the mother was notified of her statutory right to counsel in the dependency-neglect petition; at adjudication, she was appointed counsel, who continued to represent her through termination. Based on the "limited circumstances" found in Briscoe , our supreme court found that it was harmless error when the trial court failed to appoint counsel earlier than adjudication. We find the "limited circumstances" contained in Briscoe are distinguishable from the matter at hand. Moreover, Briscoe does not stand for the proposition that failure to appoint counsel is always harmless, and under the facts of this case, we do not hold that the error was harmless.
It is undisputed that Buck should have been appointed counsel at the onset of the proceeding. Had that occurred, Buck would have been given an attorney to represent his interest subject to Administrative Order No. 15.1(3), which provides, in part that
c. [a]n attorney shall diligently and zealously protect and advance the client's interests, rights and goals at all case staffings and in all court proceedings.
d. [a]n attorney shall advise and explain to the client each stage of the court proceedings and the likelihood of achieving the client's goals. An attorney, where appropriate, shall identify alternatives for the client to consider, including the client's rights regarding any possible appeal, and explain the risks, if any, inherent in the client's position.
e. [a]n attorney shall appear at all hearings and present all evidence and develop all issues to zealously advocate for his or her client and to further the client's goals.
f. [a]n attorney shall advocate for specific and appropriate services for the parent to further the client's goals.
g. [a]n attorney shall monitor implementation of case plans and court orders to further the client's goals.
h. [a]n attorney shall file appropriate pleadings to further the client's goals.
i. [a]n attorney shall review the progress of the client's case and shall advocate for timely hearings when necessary to further the client's goals.
j. [a]n attorney shall request orders that are clear, specific, and, where appropriate, include a time line for assessment, services, placement, and treatment.
Because he was not appointed counsel from the outset, Buck was not afforded these essential and vital services an attorney would have provided. He did not have an attorney to advise him and explain to him each stage of the proceedings and the likelihood of achieving his goals. He did not have anyone to explain to him the risks inherent in the positions taken at the hearings or the possibility of appeal. Buck did not have the benefit of appointed counsel at adjudication, which is an appealable matter. In the adjudication order, the court made a dependency-neglect finding on the basis of the mother's stipulation that the children were dependent-neglected due to the parental unfitness and neglect of both parents because of environmental neglect, the substance abuse of Buck, and the presence of a known sex offender in the home. There is no evidence in the record that Buck assented to these stipulations or that he understood the gravity of stipulations as they related to his parental rights. Had he been appointed the counsel to which he was entitled, Buck could have challenged these findings at not only the trial court level but also on appeal. At the very least, counsel could have requested an order that accurately represented the facts in the case or one that was clearer and more specific as to Buck's status in relation to each of the children and his role in their removal from the home.
Moreover, he did not have anyone to diligently and zealously protect and advance his interests, rights, and goals at, not only the court proceedings, but also at all case staffings. Buck testified at the termination hearing that he stopped attending staffings because he had repeatedly asked for and been denied counsel and felt that he had no one to advocate for him. He testified that he believed from the very beginning that DHS did not want to reunify the children with him. He did not have anyone to advocate for specific and appropriate services for him or to monitor implementation of the case plan. In fact, while there was evidence presented that Buck suffered from anger-management and substance-abuse issues and had prior incidents of domestic violence, DHS admitted that he was not provided any anger-management, substance-abuse, or domestic-violence classes by the department.
Moreover, Buck did not have the benefit of counsel to monitor implementation of case plans and court orders to further his goals. From the onset, Buck was identified as a putative father to some of Thomas-Buck's children. In the order of probable cause, the court ordered DNA testing to determine paternity. The subsequent court orders make no further mention of this testing or the establishment of paternity as to these children. At the very least, counsel could have ensured that Buck obtained the DNA test ordered by the court in order to verify his paternity with regard to the children.
On the facts of this case, we simply cannot conclude that appointment of counsel might not have made some difference in the outcome. In a case in which the interests and rights of the parents and the children are fundamental rights, we must always err on the side of caution. For these reasons, we hold that the error in failing to appoint counsel was not harmless.
III. Sufficiency of the Evidence regarding MT('07) and JT('08)
Buck's last point on appeal involves the sufficiency of the evidence surrounding the termination of his parental rights as to MT('07) and JT('08). He argues that the statutory grounds used by the court to terminate his parental rights all contain the element that a "parent" acted or failed to act in some manner. He contends that since he was never adjudicated or declared to be the "parent" of MT('07) or JT('08), and since DHS never provided a referral for DNA testing or introduced any proof of parentage at the termination hearing, DHS failed to sufficiently prove those statutory grounds. DHS argues that Buck failed to demonstrate prejudice from the trial court's termination of his "non-existent" parental rights, and because he does not challenge the sufficiency of the evidence on the termination of his parental rights to MT('09) and JT('14), which exposes him to the risk of automatic grounds for termination as to MT('07) and JT('08), he cannot show prejudice. However, because we reverse the termination of Buck's parental rights to MT('09) and JT('14), we need not reach these arguments. First, the reversal on MT('09) and JT('14) nullifies DHS's argument that there is an automatic ground for termination as to MT('07) and JT('08). Second, appointed counsel on remand will likely advocate for DHS to comply with the trial court's order to refer Buck for DNA testing, which would possibly render DHS's arguments regarding Buck's "non-existent" parental rights moot.
Reversed and remanded.
Abramson and Virden, JJ., agree.
Buck is the legal father of MT('09) and JT('14) and the putative father of MT('07) and JT('08). The numbers to the right of the juveniles' initials represent their birth years.
There was a true finding on Buck of environmental neglect and physical abuse as to a child. DHS opened a protective-services case based on this finding, as well as to true allegations of inadequate supervision and environmental neglect relating to Thomas-Buck.
DHS reports indicate that the home had animal feces and urine distributed throughout, including the children's bedrooms; that the sinks and toilets were full of human feces; and that trash and clothing were scattered throughout the home.
The DHS caseworker admitted during testimony at the termination hearing that the children were removed from his custody.
We note that this is factually distinguishable from Briscoe because the parent did have counsel at this appealable stage of the proceeding.
Buck's assertions were corroborated by the DHS caseworker who admitted that Buck had requested counsel, and he had refused to attend a staffing in December 2016 because one had not been appointed to him. | [
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RHONDA K. WOOD, Associate Justice
Appellant Arkansas Department of Veterans Affairs (ADVA) appeals the circuit court's denial of its motion to dismiss based on sovereign immunity. We reverse and dismiss.
Appellees, Diane Mallett and Joseph Fabits, are two former employees of ADVA. In February 2014, Mallett, Fabits, and several others filed a class-action complaint alleging that ADVA failed to compensate them for working overtime in violation of the Arkansas Minimum Wage Act (AMWA), Ark. Code Ann. §§ 11-4-201 et seq. (Repl. 2012). They allege they frequently worked through their lunch breaks and had to work off-the-clock to complete their job duties; and therefore, they are entitled to overtime wages. ADVA filed its answer in March 2014. The circuit court granted class certification, but we reversed and remanded with instructions to decertify the class in Arkansas Department of Veterans Affairs v. Mallett , 2015 Ark. 428, 474 S.W.3d 861.
Almost two years after remand, ADVA filed a motion to dismiss arguing that AMWA's abrogation of sovereign immunity violates article 5, section 20 of the Arkansas Constitution. The circuit court denied the motion to dismiss, and ADVA appealed. We have appellate jurisdiction pursuant to Rule 2(a)(10) of the Arkansas Rules of Appellate Procedure-Civil.
ADVA advanced the same argument in its motion to dismiss the AMWA claim as presented in Bd. of Trs. of Univ. of Ark. v. Andrews , 2018 Ark. 12, 535 S.W.3d 616. As in Andrews , the circuit court denied the motion to dismiss. ADVA now argues Andrews controls. We agree. Andrews controls. In Andrews , we held that the provision of the AMWA that allows the State to be named as a defendant is repugnant to article 5, section 20 of the Arkansas Constitution. While the parties ask us to further analyze Walther v. FLIS Enterprises, Inc. 2018 Ark. 64, 540 S.W.3d 264, this is not the case for us to do so. In Andrews we struck the provision of the AMWA that provided that this action could be brought against the state. We therefore reverse the circuit court's denial of ADVA's motion to dismiss on sovereign immunity. As we stated in Andrews , the avenue for financial redress is through the Claims Commission. Andrews , 2018 Ark. 12, at 12, 535 S.W.3d at 623.
Reversed and dismissed.
Kemp, C.J., concurs.
Baker, Goodson and Hart, JJ., dissent.
AMWA provides that "[a]n employee may bring an action for equitable and monetary relief against an employer, including the State of Arkansas or a political subdivision of the state, if the employer pays the employee less than the minimum wages, including overtime wages, to which the employee is entitled under or by virtue of this subchapter." Ark. Code Ann. § 11-4-218(e)(1).
We caution that Andrews should not be interpreted too broadly. The holding that the legislature may "never" authorize the state to be sued was in the application of the constitutional provision to a statutory act, AMWA, for monetary relief. Since Andrews , this court has not had the occasion to consider other actions against the state such as allegations that state actors are acting outside their constitutional duties, whether acting in a manner that is ultra vires, arbitrary, capricious, in bad faith, or refusing to perform ministerial duties. | [
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ROBIN F. WYNNE, Associate Justice
Appellant Wallace A. Gardner filed three motions in which he seeks the appointment of counsel to represent him in his pro se appeal of the denial of his pro se petition for permission to proceed in the circuit court as a pauper on a petition for writ of habeas corpus, an extension of time in which to file his corrected brief, and documents that he needs in order to file his brief. The motions are now before this court. A cursory review of the record indicates that the circuit court failed to provide sufficient findings for our review. Accordingly, we defer consideration of the motions and remand for further findings of fact.
Arkansas Rule of Civil Procedure 72 (2017) governs our review of a decision to grant or deny a petition to proceed in forma pauperis in a civil case. Watts v. Kelley , 2017 Ark. 189, 520 S.W.3d 249. Rule 72 conditions the right to proceed in forma pauperis in civil matters on indigency and the circuit court's satisfaction that the alleged facts indicate "a colorable cause of action." Ark. R. Civ. P. 72(c) (2017). Rule 72 mandates that the circuit court make a specific finding of indigency based on the petitioner's affidavit. Once satisfied that a petitioner is indigent, the circuit court must then be satisfied that the facts alleged by the petitioner state a colorable cause of action. Ark. R. Civ. P. 72(c).
If the circuit court failed to make the findings of fact mandated by Rule 72(c), this court must remand unless we can determine from the record before us that the appellant's cause of action could not proceed as a matter of law. See Ashby v. State , 2017 Ark. 233, 2017 WL 3300478 (forgoing remand where appellant sued the State of Arkansas instead of the tribunal toward whom his writ of prohibition was directed). Appellate courts do not make findings of fact. Ward v. Williams , 354 Ark. 168, 118 S.W.3d 513 (2003).
In its order denying pauper status for Gardner, the circuit court found only that Gardner had failed to allege facts that would support a colorable cause of action because he did not raise a claim in the submitted petition that was cognizable in habeas proceedings. The circuit court's order provided no findings on Gardner's status as indigent, and on that issue alone is deficient. In addition, the circuit court made only a conclusory statement regarding its determination that Gardner had failed to state a colorable cause of action. A colorable cause of action is a claim that is legitimate and may reasonably be asserted given the facts presented and the current law or a reasonable and logical extension or modification of it. Penn v. Gallagher , 2017 Ark. 283, 2017 WL 4683871. The order did not explain how the facts alleged by the petitioner failed to allege a cognizable claim.
We accordingly remand to the circuit court for a supplemental order on the in forma pauperis petition that contains adequate findings of fact and complies with Rule 72. The order must include findings on Gardner's indigency and address the basis for its conclusion that the habeas petition failed to set forth a cognizable claim. The order is to be entered, and the supplemental record containing the order returned, within thirty days from the date of this opinion. Once the supplemental record is received, we will address Gardner's motions.
Remanded for findings of fact.
Wood, J., dissents.
In the habeas petition, Gardner alleged that the trial court lacked jurisdiction and that he was held under an invalid conviction. This court affirmed Gardner's convictions for capital murder and aggravated robbery. Gardner v. State , 364 Ark. 506, 221 S.W.3d 339 (2006). This is the judgment that Gardner challenged in the habeas petition. | [
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LARRY D. VAUGHT, Judge
In this probate matter, Travis Spurling appeals the orders entered by the Montgomery County Circuit Court on June 24, 2016, and April 25, 2017. Travis argues that the circuit court erred by (1) entering an order appointing an administrator on the same date the petition for appointment was filed without providing notice and a hearing to all interested parties; (2) closing the administration of the estate without requiring proof of publication; (3) allowing the executor to serve without bond; (4) closing the administration of the estate without the filing of an accounting; (5) closing the administration of the estate without distributing the assets of the decedent; and (6) closing the administration of the estate without following the wishes of the decedent's last will and testament. We affirm.
Allie Marie Reed died on August 20, 2007. Following her death, on December 12, 2008, a petition for admission of will to probate and for appointment of executor was filed by four of Allie's children: Bernice Johnston, Sherleen Reed, Alidene Ragan, and Bill Reed. The petition alleged that Allie's surviving heirs included the petitioners and Velma Qualls, Allie's daughter, and Travis, Velma's son and Allie's grandson. The petition alleged that Allie had left a holographic will dated April 3, 2007, but that the will did not nominate an executor. The petitioners nominated Bill as the executor. The petition also listed the personal property of Allie's estate and stated that the property was located at Allie's home, which was being occupied by Travis. The petition further alleged that Travis had refused to allow the petitioners to take possession of the personal property of the estate. The petition requested that the court enter an order authorizing Bill to take possession of the personal property and directing the sheriff to assist Bill in obtaining possession of the property.
On the same day-December 12, 2008-the circuit court entered (1) an order admitting the will to probate and appointing an executor, and (2) an order listing the property of Allie's estate; finding that the property was located at Allie's home, which was occupied by Travis; and authorizing Bill and the sheriff to take possession of the property. The record reflects that on the following day, December 13, 2008, Bill, the sheriff, and others appeared at Allie's home where Travis was living to obtain possession of Allie's personal property.
On January 15, 2009, Travis filed an affidavit to claim against Allie's estate. In the affidavit, he stated that Bill took certain property from Allie's home that belonged to Travis. On the same day, Travis also filed a demand for notice of proceedings and for an inventory of the estate. He alleged, among other things, that Bill, eleven relatives, and two sheriff's deputies came to his house on December 13, 2008; spent six hours there; and removed and destroyed numerous items of his (Travis's) personal property that were not on the list attached to the petition to probate Allie's will that was provided to the court. In the demand, Travis further alleged that Allie's will did not waive bond, that Bill failed to notify the devisees of Allie's estate of his appointment, and that Bill failed to publish notice to creditors or take any action in his administrative capacity except to remove Travis's personal property from his home. Travis requested that the circuit court refuse to enter further orders without notice to him and without his opportunity to be heard, to require Bill to post bond as required by Arkansas law, to require Bill to publish notice to creditors, and to require Bill to file an inventory of the estate's assets.
On October 22, 2009, Travis filed a petition for relief. Therein, he alleged that Bill had not filed an inventory of the estate, a publication and notice to creditors, an inventory of estate assets, or an accounting of the estate. In August 2010, the circuit court entered an order directing Bill to file an estate inventory no later than August 19, 2010.
On October 1, 2010, Travis filed another petition for relief, alleging that Bill failed to timely file an inventory as ordered by the circuit court in August 2010. Travis alleged that Bill's conduct was contemptuous and that he should be appropriately punished. On October 8, 2010, Travis filed a petition for contempt, alleging that Bill failed to timely file an inventory as ordered by the circuit court in August 2010.
According to an October 26, 2011 letter from Travis's counsel to the circuit court, the contempt issue was set for a hearing, but counsel met in chambers beforehand wherein Bill's counsel (1) agreed that he and Bill were in error and Bill agreed to pay Travis an attorney's fee of $500 and (2) discussed the return of Travis's personal property as soon as possible. Travis's counsel's letter stated that the $500 had been paid, but nothing else had occurred. Travis's counsel requested a hearing on Travis's demand that Bill file an inventory and on the issue of the return of Travis's property.
On January 20, 2012, a hearing was held on Travis's petitions for relief and for contempt. At the onset of the hearing, counsel for Bill advised the court that Bill had filed an inventory that day. Travis's counsel responded, stating that he had filed a petition for relief asking for notice, publication to the creditors, an inventory, and an accounting. Travis's counsel stated that when those things did not occur, he filed the petition for contempt; however, the parties had resolved the contempt issue. Travis's counsel then requested that a new executor be appointed, to which counsel for Bill agreed. The circuit court granted the oral request; relieved Bill of his duties as executor of Allie's estate; appointed a third party, Chris Ray, as the executor of Allie's estate; and made a $10,000 signature bond for Ray.
Also on January 20, 2012, Bill filed a petition alleging that Travis had possession of estate property and seeking to have him return it to the estate. On January 30, 2012, Travis filed an objection to the inventory, claiming that there were items listed in it that belonged to him and that there were items listed that Bill previously alleged that Travis possessed.
On May 3, 2016, the circuit court held another hearing and heard testimony from Bill, Travis, and Marsha Summit (Allie's granddaughter) and arguments regarding the items of personal property at issue. On June 24, 2016, the circuit court entered an order finding that Allie passed away on August 20, 2007; Bill was appointed executor of Allie's estate; on December 13, 2008, Bill and others appeared at Travis's home to retrieve items belonging to the estate; the estate had sufficient time to remove all items belonging to the estate on December 13, 2008; and the estate was entitled to only those items listed in the inventory filed January 20, 2012. The circuit court then made specific findings as to certain items of personal property, awarding some items to the estate and others to Travis. The court reserved making a ruling on the disposition of a rifle.
On April 25, 2017, the circuit court entered another order, summarizing the findings in its June 24, 2016 order. The court found that all items of Allie's personal property remaining in Allie's home after December 13, 2010, were awarded to Travis. All items of Allie's personal property in Bill's possession were awarded to the estate. Finally, the court found that there was no other property of any value remaining in the estate to dispose of and closed the estate. This appeal followed.
On appeal, Travis's first four arguments are that the circuit court erred by (1) entering an order appointing an administrator on the same date the petition for appointment was filed without providing notice and a hearing to all interested parties; (2) closing the administration of the estate without requiring proof of publication; (3) allowing the executor to serve without bond; and (4) closing the administration of the estate without the filing of an accounting.
Travis raised these four arguments in his pleadings below. However, our review of the record reveals that the circuit court never ruled on these issues. Accordingly, there are no rulings on these issues in the record before us. It is well settled that to preserve arguments for appeal, even constitutional ones, the appellant must obtain a ruling below. Doe v. Baum , 348 Ark. 259, 277, 72 S.W.3d 476, 486 (2002). Because Travis failed to obtain rulings from the circuit court on his first four points on appeal, these issues are not preserved for appeal, and we must affirm.
Travis's fifth point on appeal is that the circuit court erred in closing the administration of the estate without distributing the assets of the decedent as required by Arkansas Code Annotated sections 28-53-103 et seq. (Repl. 2012). Travis's entire argument under this point is as follows:
The Arkansas Probate Code requires compliance with statutory requirements regarding the distribution of the decedent's assets. Ark. Code Ann. § 28-53-103 et seq. The court entered an order on April 25, 2017 closing the estate without distributing any of the existing property in the estate. This was clearly erroneous. As a result of the failure of the distribution of assets, Travis Spurling suffered irreparable harm by not receiving his one-sixth share of the decedent's estate as directed in her will.
We review probate matters de novo but will not reverse the probate court's findings of fact unless they are clearly erroneous. Patton v. Fulmer , 2016 Ark. App. 260, at 7, 492 S.W.3d 512, 516. A finding is clearly erroneous when, although there is evidence to support it, the appellate court is left on the entire evidence with the firm conviction that a mistake has been committed. Id. , 492 S.W.3d at 516. We must also defer to the superior position of the lower court sitting in a probate matter to weigh the credibility of the witnesses. Id. , 492 S.W.3d at 516.
Here, the circuit court heard evidence from Travis, Bill, and Allie's granddaughter regarding the items of personal property in dispute and the value of those items. The court then weighed the evidence in order to distribute the property. We must defer to the superior position of the circuit court in the manner it weighed the evidence in this regard. Furthermore, the record reveals that the circuit court distributed all the personal property in dispute-estate and nonestate property-that was identified by the parties. In its final order, the court found that all of Allie's personal property that remained in her home was the sole property of Travis. The court found that all of Allie's property that was in Bill's barn was the property of the estate. Finally, the court found that there was no other property of any value remaining in the estate to distribute; therefore, the court closed the estate. Travis does not explain or identify what assets were not distributed. He does not present the value of any of the personal property in dispute. He also fails to explain how he was harmed. Accordingly, we hold that the circuit court's order distributing the estate assets was not clearly erroneous and affirm this point.
Travis's sixth and final point on appeal is that the circuit court erred by closing the administration of the estate without following the wishes of the decedent's last will and testament. Travis's entire argument under this point is as follows:
On December 12, 2008, the court admitted Allie Reed's holographic will to probate. That will declared that she wished that her estate be divided six ways
between her five children and Travis Spurling, a grandson. On April 25, 2017, the court entered an order closing the estate without regard to the distribution of the decedent's assets in accordance with the terms of her will. No distribution was made, despite clear evidence that the Executor held all of the estate's property in a barn. This was clearly erroneous. As a result, Travis Spurling suffered irreparable harm by not receiving one-sixth of the decedent's estate in accordance with her wishes.
Again, as set forth above, the circuit court heard testimony from Travis, Bill, and Allie's granddaughter regarding the items of personal property in dispute and the value of those items. The court weighed that evidence in order to distribute the property. The court awarded some of Allie's property to the estate and some to Travis. We must defer to the superior position of the circuit court on this issue. Moreover, Travis, in his argument, does not point to any evidence to support his argument that the circuit court's distribution was not in accordance with Allie's will. He cites no evidence to demonstrate that the value of his distribution was less than one-sixth of the estate. In fact, he cites no evidence pointing to the value of any of the items of personal property in dispute. Accordingly, we hold that the circuit court's order distributing the estate assets and closing the estate was not clearly erroneous and affirm on this point.
Affirmed.
Virden and Gladwin, JJ., agree.
Allie's will read:
I have five children. Bernice, Sherleen, Alidene, Bill, Velma Jean. I have a grandson Travis Spurling. I want Travis to share just like my children when I leave this world. I want my estate divided into six parts. For Bernice, Sherleen, Alidene, Bill, Velma Jean and Travis.
On December 12, 2008, Bill filed an acceptance of appointment of executor.
The inventory reveals that Allie owned no real property.
This claim is the subject of a separate civil appeal brought by Travis against Bill, individually and as executor of Allie's estate, and Sherleen, which we also hand down today. Spurling v. Reed , 2018 Ark. App. 175, 2018 WL 1177926. | [
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ROBIN F. WYNNE, Associate Justice
Appellant Henry Timmons appeals the denial of his pro se petition for leave to proceed in forma pauperis on a petition for writ of habeas corpus. Because it is clear from the record that Timmons's cause of action cannot proceed as a matter of law, we affirm.
Our standard of review of a decision to grant or deny a petition to proceed in forma pauperis is abuse of discretion, and the circuit court's factual findings in support of its exercise of discretion will not be reversed unless clearly erroneous. Whitney v. Guterres , 2018 Ark. 133, 2018 WL 1957077, petition for cert. filed (U.S. Aug. 24, 2018 (No. 18-5891) ). An abuse of discretion occurs when the court acts arbitrarily or groundlessly. Whitney v. State , 2018 Ark. 138, 2018 WL 1957111.
Arkansas Rule of Civil Procedure 72 (2017) conditions the right to proceed in forma pauperis in civil matters on indigency and the circuit court's satisfaction that the alleged facts indicate a colorable cause of action. Ark. R. Civ. P. 72(c) (2017). A colorable cause of action is a claim that is legitimate and may reasonably be asserted given the facts presented and the current law or a reasonable and logical extension or modification of it. Penn v. Gallagher , 2017 Ark. 283, 2017 WL 4683871. The circuit court must first make a specific finding of indigency based on the petitioner's affidavit before addressing whether the petitioner has stated a colorable cause of action. Ark. R. Civ. P. 72(c). The determination of a colorable claim is then made from an evaluation of the petitioner's nonconclusory factual allegations because under this court's rules of civil procedure, allegations in a pleading must state facts and not mere conclusions in order to entitle the pleader to relief. Ballard Grp., Inc. v. BP Lubricants USA, Inc. , 2014 Ark. 276, at 6, 436 S.W.3d 445, 449 (citing Ark. R. Civ. P. 8(a) (2013) ).
The circuit court found that Timmons had presented sufficient evidence to establish that he was indigent. The circuit court then found that Timmons had failed to allege a matter cognizable in a habeas petition and had not presented a colorable cause of action. The court did not identify the allegations that Timmons made or explain why it concluded that those allegations, as a matter of law, were not sufficient to support a claim for the writ. Nevertheless, it is unnecessary for us to remand the case, because it is clear from the record that Timmons's cause of action cannot proceed as a matter of law. See Ashby v. State , 2017 Ark. 233, 2017 WL 3300478.
A writ of habeas corpus is proper when a judgment of conviction is invalid on its face or when a circuit court lacks jurisdiction over the cause. Philyaw v. Kelley , 2015 Ark. 465, 477 S.W.3d 503. A petitioner for the writ who does not allege his actual innocence and proceed under Act 1780 of 2001 Acts of Arkansas must plead either the facial invalidity of the judgment or the lack of jurisdiction by the trial court and make a showing by affidavit or other evidence of probable cause to believe that he is illegally detained. Ark. Code Ann. § 16-112-103(a)(1) (Repl. 2016). Unless the petitioner in proceedings for a writ of habeas corpus can show that the trial court lacked jurisdiction or that the commitment was invalid on its face, there is no basis for finding that a writ of habeas corpus should issue. Fields v. Hobbs , 2013 Ark. 416, 2013 WL 5775566.
Timmons was convicted of a rape that occurred in February 1983. Timmons alleges that he was sentenced as a habitual offender under Act 409 of 1983, which was not in effect at the time the offense was committed, and that the application of the Act to him was ex post facto, rendering the sentencing order illegal due to a lack of jurisdiction. He does not, however, contend that his sentence was rendered void or illegal due to this alleged error, and his ex-post-facto claim does not implicate the subject-matter jurisdiction of the trial court. Timmons's ex-post-facto claim does not challenge the facial validity of the judgment, nor does it demonstrate a lack of jurisdiction by the trial court. As such, it is not cognizable in a petition for habeas-corpus relief. See Burgie v. Hobbs , 2013 Ark. 360, 2013 WL 5436626 (per curiam).
Affirmed.
Hart, J., dissents.
The circuit court, in rejecting Mr. Timmons's petition to proceed in forma pauperis did not make the findings required by Rule 72 of the Arkansas Rules of Civil Procedure. Accordingly, this case must be remanded to the circuit court to make adequate findings. Rea v. Kelley , 2018 Ark. 329, 559 S.W.3d 746 ; Gardner v. Kelley , 2018 Ark. 212, 549 S.W.3d 349 ; Wood v. State , 2017 Ark. 290, 2017 WL 4837357. The majority is simply wrong when it ignores this clear precedent; inexplicably, one of the cited cases, Gardner was authored by the writing judge in this case.
Furthermore, I dispute the majority's contention that Mr. Timmons has not stated a "colorable cause of action" in his habeas petition. Habeas corpus is a vital privilege that is protected by the Arkansas Constitution. Cloird v. State , 349 Ark. 33, 40, 76 S.W.3d 813, 817 (2002) (citing Ark. Const. art. 2, § 11 ). The purpose of the writ is to protect an individual from unlawful confinement, including prison sentences that are longer than that permitted by statute, which constitutes a denial of liberty without due process of law. Id. See also Renshaw v. Norris , 337 Ark. 494, 989 S.W.2d 515 (1999). Further, it is well established that a prisoner's sentence is governed by the sentencing law in effect at the time he committed the offense. Rogers v. Knight , 2017 Ark. 267, 527 S.W.3d 719 ; Bosnick v. Lockhart , 283 Ark. 533, 677 S.W.2d 292 (1984).
Sentencing Mr. Timmons in accordance with a statute that was not in effect at the time he committed the offense for which he is being incarcerated violates the well-settled law that a prisoner's sentence is governed by the sentencing law in effect at the time he committed the offense. Rogers , supra ; Bosnick , supra. Mr. Timmons is therefore being forced to serve a sentence that is longer than authorized by statute, which makes out a "colorable claim" for habeas relief. See Cloird , supra.
I dissent. | [
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KENNETH S. HIXSON, Judge
Appellant Leslie Harley appeals from the termination of her parental rights to her daughter L.S., who was born on May 5, 2015. Pursuant to Linker-Flores v. Arkansas Department of Human Services , 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), Leslie's counsel has filed a no-merit brief and a motion to withdraw, asserting that there are no issues of arguable merit to support an appeal and that she should be relieved as counsel. A copy of Leslie's counsel's brief and motion was mailed to Leslie, and after being informed of her right to file pro se points, Leslie declined to file any points. We affirm and grant appellant's counsel's motion to be relieved.
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Supp. 2017); Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Gray v. Ark. Dep't of Human Servs. , 2013 Ark. App. 24, 2013 WL 245718. The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep't of Human Servs. , 96 Ark. App. 247, 240 S.W.3d 626 (2006).
On January 17, 2017, appellee Arkansas Department of Human Services (DHS)
filed a petition for emergency custody of L.S. Attached to the petition was an affidavit of a DHS caseworker stating that DHS had exercised a 72-hour hold on the child after Leslie was found highly intoxicated in a ditch digging for arrowheads. Leslie did not know where L.S. was, and L.S. was passed around from person to person before the police located her several hours later. Leslie was arrested for public intoxication and endangering the welfare of a minor. The affidavit further stated that Leslie's parental rights had been involuntarily terminated as to L.S.'s older sibling, M.S. On the same day that DHS's petition was filed, the trial court entered an ex parte order of emergency custody of L.S. The trial court subsequently entered a probable-cause order.
On February 21, 2017, the trial court entered an adjudication order finding L.S. dependent-neglected based on Leslie's stipulation that L.S. was subjected to inadequate supervision. Leslie was ordered to complete parenting classes, submit to drug screening, submit to a drug-and-alcohol assessment, submit to a psychological evaluation, complete counseling, obtain and maintain income sufficient to support herself and the child, and visit the child regularly. The goal of the case was reunification.
A review order was entered on May 16, 2017, wherein the trial court found that Leslie had been only minimally compliant with the case plan. The trial court found that Leslie had not had a drug-and-alcohol assessment, had failed to attend counseling, had not completed parenting classes, and was unemployed. The trial court did, however, find that Leslie had been visiting the child regularly and had tested negative on drug screens.
A second review order was entered on September 9, 2017. In that order, the trial court found that Leslie had not complied with the case plan, was unemployed, had not completed parenting classes, had a suspended license and owed $5000 in fines, and had pending criminal charges. The trial court further found that Leslie had missed most of her visits with L.S. and had tested positive for methamphetamine on July 24, 2017. The goal of the case was changed to termination of parental rights.
DHS filed a petition to terminate Leslie's parental rights on September 26, 2017. In the petition, DHS alleged numerous statutory grounds for termination and stated that Leslie had stopped regularly visiting the child and had totally quit on the case plan. DHS attached to its petition the previous termination order, filed on December 21, 2015, wherein Leslie's parental rights to L.S.'s older sibling, M.S., had been terminated. In the previous termination order, Leslie's parental rights to M.S. were terminated due to Leslie's positive drug screens, unstable housing, general lack of compliance, and abandonment of the child.
After a termination hearing, the trial court entered an order on January 10, 2018, terminating Leslie's parental rights to L.S. The trial court found by clear and convincing evidence that termination of parental rights was in L.S.'s best interest, and the trial court specifically considered the likelihood of adoption, as well as the potential harm of returning the child to the custody of her mother as required by Arkansas Code Annotated section 9-27-341(b)(3)(A). The trial court also found clear and convincing evidence of four statutory grounds under subsection (b)(3)(B). Pursuant to subsection (b)(3)(B)(iv), the trial court found that Leslie had abandoned the juvenile. Under subsection (b)(3)(B)(vii)(a) , the trial court found that other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrated that placement of the juvenile in the custody of the parent was contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services, the parent had manifested the incapacity or indifference to remedy those issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent. Under subsection (b)(3)(B)(ix)(a)(3) , the trial court found that Leslie had subjected the juvenile to aggravated circumstances because there was little likelihood that services to the family would result in successful reunification. Finally, pursuant to subsection (b)(3)(B)(ix)(a)(4) , the trial court found that Leslie had previously had her parental rights involuntarily terminated as to a sibling of L.S.
DHS caseworker Pamela Feemster testified at the termination hearing. Ms. Feemster stated that although Leslie participated in the development of the case plan, there had been minimal progress or compliance. According to Ms. Feemster, Leslie had not completed a psychological evaluation or adequately participated in counseling services. Nor did Leslie complete a drug-and-alcohol assessment or parenting classes. Ms. Feemster stated that Leslie had missed ten of the last twelve scheduled visits with L.S. and that three of these missed visits were the result of failed drug screens. On the day of the termination hearing, Leslie tested positive for prescription drugs without a prescription.
A sentencing order was admitted showing that Leslie had recently pleaded guilty to endangering the welfare of a minor, for which she received a two-year suspended sentence. Ms. Feemster testified that a few weeks before the termination hearing, Leslie was charged with the additional offenses of reckless driving, driving on a suspended license, and possession of drug paraphernalia (a marijuana pipe).
Ms. Feemster testified that there had not been any progress or significant changes with Leslie's situation since the beginning of the case and that the same issues that caused removal were still present. Ms. Feemster thought that L.S. would be at risk of harm if returned to Leslie's custody because she would continue to be neglected. Ms. Feemster also testified that L.S. is a very smart child with no behavioral issues and that it was highly likely she could be adopted. Ms. Feemster recommended termination of parental rights and adoption.
Leslie testified on her own behalf but offered little to rebut the caseworker's testimony. Leslie acknowledged that she was not in compliance with the case plan and had missed several visits with the child. Leslie blamed her deficiencies on depression.
In appellant's counsel's no-merit brief, counsel correctly asserts that the only adverse ruling was the termination itself and that there can be no meritorious challenge to the sufficiency of the evidence supporting termination of Leslie's parental rights. Although the trial court found four statutory grounds for termination, only one ground is necessary to support the termination. See Campbell v. Ark. Dep't of Human Servs. , 2017 Ark. App. 82, 2017 WL 519132. In this case it is undisputed that, before the initiation of these proceedings, Leslie had her parental rights involuntarily terminated as to L.S.'s older sibling. One of the statutory grounds found by the trial court was that, under Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4) , Leslie had her parental rights involuntarily terminated as to another child. This ground supported termination of Leslie's parental rights and any argument to the contrary would be without merit.
Appellant's counsel further asserts that there can be no meritorious challenge to the trial court's finding that termination was in L.S.'s best interest, and we agree. The testimony showed that Leslie had only minimally complied with the case plan, had tested positive on drug screens, had stopped visiting the child regularly, and was in no better position to regain custody of L.S. than when the child was removed. Moreover, the caseworker testified that it was highly likely that L.S. could be adopted. On this record, the trial court's finding that termination of Leslie's parental rights was in L.S.'s best interest was not clearly erroneous.
After examining the record and appellant's counsel's brief, we have determined that this appeal is wholly without merit. Accordingly, we affirm the order terminating appellant's parental rights and grant her counsel's motion to be relieved from representation.
Affirmed; motion granted.
Glover and Vaught, JJ., agree.
The child's father is unknown.
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MIKE MURPHY, Judge
Rose Corley and Joey Bilbrey appeal the November 29, 2017 order of the Garland County Circuit Court terminating their parental rights to their four children, twins AB and EB (d.o.b. 1/15/15), MB (d.o.b. 8/13/13), and GB (d.o.b. 10/29/10). They argue the lower court erred in finding that grounds existed for termination and that termination was in the best interest of the children. We affirm.
I. Facts
This case began on September 7, 2016, when the Arkansas Department of Human Services (DHS) received a report of environmental neglect through the child-abuse hotline. The affidavit included with the petition for removal alleged that when DHS made an unannounced visit to the home, the floors were covered in trash, dirty clothes, and animal feces. There were no diapers for the younger children, and both parents tested positive for methamphetamine, MDMA, and opiates. The oldest child, GB (then six), tested positive for methamphetamine. DHS exercised a seventy-two-hour hold on the four children.
The case progressed through emergency and probable-cause hearings with corresponding findings and orders entered. On November 18, 2016, the children were adjudicated dependent-neglected based on environmental neglect and parental unfitness because of the parents' illegal substance abuse. The parents were ordered to comply with the case plan, which required that they refrain from drug use; submit to random drug screens; complete parenting classes; attend individual- and family-counseling sessions; maintain stable and appropriate housing, income, and transportation; and complete psychological and drug-and-alcohol assessments and all recommended treatment.
Two review hearings were held, one on February 22, 2017, and the other on May 10, 2017. At the permanency-planning hearing on August 23, 2017, the trial court found that the parents had not made significant and measurable progress toward reunification and changed the goal from reunification to termination of parental rights. On September 22, 2017, DHS filed a petition to terminate parental rights, alleging the grounds of twelve months failure to remedy, Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a) (Supp. 2017), and subsequent factors, Ark. Code Ann. § 9-27-341(b)(3)(B)(vii)(a) .
The termination hearing took place on November 29, 2017. Family service worker Jamie Moran testified that the parents did have some compliance during the case but that Corley never sought employment during the case and that both parents tested positive for amphetamines and methamphetamine the week before the termination hearing. Moran testified that Corley never submitted to outpatient drug treatment. She testified that Bilbrey never submitted to a drug-and-alcohol assessment or completed any outpatient or inpatient drug treatment. She testified that the parents never progressed to the point that their visitation could be unsupervised.
Kelsey Lewis, GB's therapist, testified. Because of GB's behavioral issues, she recommended that visits stop in November 2016. However, the parents were participating and engaged in family therapy with GB. Lewis testified that as of the date of the termination hearing, if GB were to return home with his parents, he would be at risk of continued neglect and emotional distress. The trial court also received testimony from DHS's adoption specialist that the children are adoptable but that there was no guarantee that the siblings would be adopted together.
Catherine Francioni, Bilbrey's employer, testified. She indicated that Bilbrey had been an employee of hers for two years. He was dependable. He was working roughly thirty-six hours a week making ten dollars an hour and that his employment was stable.
Finally, Corley testified. She admitted that drugs had impacted her housekeeping chores in the beginning of the case. She testified that there were only two instances when she tested positive for drugs: at removal and shortly before the termination hearing. Corley testified that she had told her caseworker that she wanted substance-abuse treatment but that the Quapaw House had indicated it had not yet been paid. She testified that she called the outpatient center several times but was never able to arrange treatment.
At the conclusion of the termination hearing, the trial court terminated the parental rights of Bilbrey and Corley pursuant to the twelve-months-failure-to-remedy ground found in Arkansas Code Annotated section 9-27-341(b)(3)(B)(i). It found that termination of parental rights was in the best interest of the children. This timely appeal follows.
II. Standard of Review
We review termination-of-parental-rights cases de novo. Bunch v. Ark. Dep't of Human Servs. , 2017 Ark. App. 374, 523 S.W.3d 913. At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3). Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Bunch , supra . A heavy burden is placed on a party seeking termination because termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Id. We will not reverse a termination order unless the trial court's findings were clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.
III. Grounds
A court may order termination of parental rights if it finds clear and convincing evidence to support one or more statutory grounds listed in the Juvenile Code, Ark. Code Ann. § 9-27-341(b)(3)(B), and that termination is in the best interest of the child, taking into consideration the likelihood of adoption and the potential harm to the health and safety of the child that would be caused by returning him or her to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A).
Proof of only one statutory ground is sufficient to terminate parental rights. Contreras v. Ark. Dep't of Human Servs. , 2015 Ark. App. 604, 474 S.W.3d 510. The failure-to-remedy ground, codified at Arkansas Code Annotated section 9-27-341(b)(3)(B)(i)(a) & (b) , provides that termination is appropriate when a juvenile has (1) been adjudicated by the court to be dependent-neglected and (2) continued to be out of the custody of the parent or the home of the noncustodial parent for twelve months and, (3) despite a meaningful effort by the department to rehabilitate the parent and correct the conditions that either caused removal from the custodial parent or prohibited placement with the noncustodial parent, the conditions have not been remedied.
In its order terminating Corley's and Bilbrey's parental rights, the circuit court found that
[t]he juveniles have been out of the custody of the parents for over twelve months and the parents have not corrected the circumstances which brought them into the state's custody and prevent return or placement of the juveniles in their home; the mother has not completed an outpatient treatment program as recommended by her drug/alcohol assessment; the father has not submitted to any drug/alcohol treatment program; the parents have not obtained stable housing; and the parents have not remained clean and sober as they tested positive for methamphetamines on November 20, 2017. The Court also finds that the parents have not made significant progress toward completion of the case plan. The juveniles need and deserve permanency.
On appeal, the parents argue that DHS did not make meaningful efforts to provide services or rehabilitate the family and correct the conditions that caused removal or prohibited placement.
We disagree and hold that there is sufficient evidence that DHS provided meaningful services to both parents. At the termination hearing, the DHS caseworker testified regarding the various services that had been provided to Corley and Bilbrey. The caseworker testified Corley had not submitted to the outpatient treatment that DHS offered and that Bilbrey had not completed his drug assessment and had not completed any outpatient or inpatient drug treatment. And, despite Corley and Bilbrey's attending the counseling and parenting classes DHS had arranged for them, the case never progressed to a point that unsupervised visitation could be attempted.
Corley contends that not completing outpatient treatment was due to DHS's failure to pay for the treatment, and thus it was no fault of her own. She points to testimony from the caseworker regarding the caseworker's inability to recall whether Corley had been told that outpatient services had been paid for. The caseworker testified, however, that "for a certainty" payment for the services had been arranged and completed since around July of that year. Even still, Corley testified she knew how vital completion of drug-treatment services was to her case plan. Corley also knew how to contact both the provider of these services and DHS. That there may have been some difficulties surrounding this service-one of a range of services offered by DHS-does not lead us to a conclusion that DHS did not make a meaningful effort with this family over a fourteen-month period. We are not left with a definite and firm conviction that a mistake has been made.
IV. Best Interest
In determining whether termination is in the best interest of a child, the trial court must consider the entire history of the case and all relevant factors in the case, including the likelihood that the child will be adopted and the potential harm that would be caused by returning the child to the custody of the parent. Chaffin v. Ark. Dep't of Human Servs. , 2015 Ark. App. 522, at 5, 471 S.W.3d 251, 255. Adoptability and potential harm, however, are merely two factors to be considered and need not be established by clear and convincing evidence. Id.
Corley and Bilbrey argue that given their appropriate interactions with GB in therapy and consistent positive contact with their other children, coupled with their now-appropriate home, the circuit court erred in finding that termination was in the children's best interests. They characterize their failed methamphetamine tests just prior to the termination hearing as a "lapse in judgment" and compare it to the parent's relapse in Rhine v. Arkansas Department of Human Services , 2011 Ark. App. 649, 386 S.W.3d 577.
In Rhine , the trial court had ordered the father not to drink alcohol, and the father's parole conditions also included that he refrain from drinking alcohol. Id. The slight lapses in judgment included two incidents with alcohol. Id. The first incident involved the father drinking at home while the child spent the night at a friend's house, and the second incident involved the father and child in a car with another passenger who had an open container of alcohol. Id. Neither of the incidents led to criminal charges against the father or revocation of his parole, and at the termination hearing, the father acknowledged his poor decisions and his need for improvement. Id.
The circumstances here, however, are not like those in Rhine , and despite the parents' contentions otherwise, there is sufficient evidence of potential harm. In considering the potential harm caused by returning the child to the parent, the court is not required to find that actual harm would result or to affirmatively identify a potential harm. Welch v. Ark. Dep't of Human Servs. , 2010 Ark. App. 798, 378 S.W.3d 290. Potential harm must be viewed in a forward-looking manner and in broad terms. Abdi v. Ark. Dep't of Human Servs. , 2018 Ark. App. 173, 544 S.W.3d 603. Additionally, the risk for potential harm is but one factor for the court to consider in its analysis. Id.
Here, the case began when, among other things, a young child and his two parents tested positive for methamphetamine, and they lived in a dirty home in which the children were unsupervised due to the parents' drug use. In this context, both parents testing positive for methamphetamine two weeks before the termination hearing was much more significant than the "minor incidents of noncompliance," because the parents' use of methamphetamine was the primary risk to the children's health, safety, and welfare in this case. Corley also admitted in her testimony that at least two weeks before the termination hearing, she had socialized with known methamphetamine users and had allowed them into her home. On these facts, there is no basis for a "firm conviction" that the trial court's potential-harm finding was a mistake. Case law is clear that continuing to test positive for illegal drugs during a dependency-neglect case demonstrates potential harm. Allen v. Ark. Dep't of Human Servs. , 2011 Ark. App. 288, at 10, 384 S.W.3d 7, 12.
Regarding adoptability, Corley and Bilbrey argue that because there was "no guarantee the siblings would be adopted together," termination could not be in their best interest. They also argue that given the length of time it would require to adopt the children, there was "no harm in ... affording them a little more time to see if they could maintain the home."
The Juvenile Code does not require certainty, let alone a "guarantee," that siblings be adoptable as a group. In fact, the case law provides that while keeping siblings together is a commendable goal and an important consideration, it is but one factor that must be considered when determining the best interest of the child. Ark. Dep't of Human Servs. v. Couch , 38 Ark. App. 165, 169, 832 S.W.2d 265, 267 (1992). In this case, the adoption specialist testified that the likelihood for sibling-group adoption was "very good." Thus, the trial court made no clear error when finding that these children are adoptable.
Affirmed.
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COURTNEY HUDSON GOODSON, Associate Justice
Appellant Michael E. Rea appeals from the denial of his petition to proceed in the circuit court as a pauper with a petition for writ of habeas corpus. Pending before this court are Rea's motion for an extension to file his brief-in-chief and motion to file a belated brief. A review of the record and the order that denied Rea's in forma pauperis petition indicates that the circuit court failed to provide sufficient findings for this court to review. Accordingly, we defer consideration of the motions and remand for further findings of fact.
Arkansas Rule of Civil Procedure 72 (2017) governs our review of a decision to grant or deny a petition to proceed in forma pauperis in a civil case. Gardner v. Kelley , 2018 Ark. 212, 549 S.W.3d 349. Rule 72 conditions the right to proceed in forma pauperis in civil matters on indigency and the circuit court's satisfaction that the alleged facts indicate "a colorable cause of action." Ark. R. Civ. P. 72(c). Rule 72 mandates that the circuit court make a specific finding of indigency based on the petitioner's affidavit. Id. Once satisfied that a petitioner is indigent, the circuit court must then be satisfied that the facts alleged by the petitioner state a colorable cause of action. Ark. R. Civ. P. 72(c). If the circuit court failed to make the findings of fact mandated by Rule 72(c), this court must remand unless we can determine from the record before us that the appellant's cause of action could not proceed as a matter of law. Id.
In Gardner , the circuit court found only that petitioner had failed to allege facts that would support a colorable cause of action because he did not raise a claim in the submitted petition that was cognizable in habeas proceedings. Gardner , 2018 Ark. 212, 549 S.W.3d 349. Likewise, the order in this case denied Rea pauper status on the basis that Rea had failed to state a cognizable claim for habeas relief and had therefore failed to state a colorable cause of action. A colorable cause of action is a claim that is legitimate and may reasonably be asserted given the facts presented and the current law or a reasonable and logical extension or modification of it. Penn v. Gallagher , 2017 Ark. 283, 2017 WL 4683871.
We pointed out in Gardner that the circuit court is required under Rule 72 to enter specific findings on a petitioner's indigency before addressing issues as to whether the petitioner had stated a colorable claim. 2018 Ark. 212, 549 S.W.3d 349. If the circuit court's order does not provide findings on a petitioner's indigent status, such an omission will render the order deficient under Rule 72. Id. Moreover, the circuit court is required by Rule 72 to explain the basis for its conclusion that a petitioner has failed to state a colorable cause of action by making specific findings that delineate why a petitioner failed to allege a cognizable claim for habeas relief. Id.
Accordingly, we remand to the circuit court for a supplemental order on the in forma pauperis petition that contains adequate findings of fact and complies with Rule 72. The order must include findings on Rea's indigency and address the basis for its conclusion that the habeas petition failed to set forth a cognizable claim. The order is to be entered, and the supplemental record containing the order is to be returned within thirty days from the date of this opinion. Once the supplemental record is received, we will address Rea's motions.
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RITA W. GRUBER, Chief Judge
The parties' dispute in this probate case involves a family-settlement agreement executed after the death of Lavon Carroll, appellant Jeffrey Trask's mother and appellee James Trask's grandmother. On appeal, Jeffrey assigns error to the circuit court's failure to enforce the agreement and to its alleged modification thereof. On cross-appeal, James, Jeffrey's nephew, argues that the family-settlement agreement is invalid and unenforceable. We affirm on direct appeal; we dismiss the cross-appeal for lack of jurisdiction.
Lavon Carroll passed away on September 28, 2014, leaving four grown children: Robert Trask, Jr., Karen Copeland, Jeffrey Trask, and Spencer Trask. Robert, a resident of Texas, passed away on January 19, 2015, several months after his mother's death. Ms. Carroll left a will, pursuant to which she left her household furnishings and appliances to her husband and all the "rest, residue and remainder" of her estate to the trustee of the Lavon Carroll Trust (the "Trust") to be held subject to the terms and conditions therein. Although a copy of the Trust is not included in the record on appeal, the parties agree that it divides Ms. Carroll's assets into four equal shares, one for each of her children. The parties also agree that the Trust provides that upon Robert's death, his share of the Trust passed to his descendants, James and Todd Trask. Ms. Copeland was appointed as executrix of the Estate of Lavon Carroll (the "Carroll Estate"). Jeffrey Trask was trustee of the Trust.
Ms. Copeland filed an inventory, accounting, and amended accounting, requesting the court for authority to make a final distribution, for fees, and for closure of the Carroll Estate. Jeffrey, as trustee of the residuary beneficiary of the will, objected to the inventory and accounting as incomplete and to the request to close the Estate as premature. Ms. Copeland filed a second amended accounting, and the parties exchanged discovery from 2016 through early 2017. In March 2017, a family-settlement agreement resolving these issues was executed by Jeffrey, individually and as trustee and beneficiary of the Trust; Karen Copeland, individually, as beneficiary of the Trust, and as administratrix of the Carroll Estate; Spencer Trask, as beneficiary of the Trust; and Vicki Trask, as administratrix of the Estate of Robert Trask, Jr., beneficiary of the Trust. The agreement stated that they had resolved their disputes regarding the inclusion and disposition of certain assets and the payment of certain expenses "subject to approval by James E. Trask and Todd Robert Trask as contingent beneficiaries of the Lavon Carroll Family Trust, and/or the So-Ordering thereof by the Saline County Probate Court as presented, or as may be modified by it upon hearing." Of particular import to the dispute on appeal, Vicki agreed in the family-settlement agreement to deliver to Jeffrey certain items in her possession. It is the possession and ownership of these items that is at the heart of the parties' dispute. The items include two Waterford crystal glasses, a bookcase that Ms. Carroll allegedly gave to Robert ten years before her death, several paintings, Robert's bronzed baby shoes, juice glasses, Christmas plates, and various other items that the parties agree have little financial value.
The circuit court entered a consent order on March 28, 2017, approving the family-settlement agreement and stating that the parties in possession of the personal property listed in the agreement "will deliver it to the State of Arkansas" for sale. The court also stated the following regarding James and Todd Trask:
The attached Stipulation of Settlement appears reasonable on the facts presented in the various pleadings. Notwithstanding, the Court recognizes the legal distinction between the two sons of Robert Trask, Jr., deceased, as contingent beneficiaries of the Lavon Carroll Family Trust and the Estate of Robert Trask, Jr. Given that distinction, James E. Trask and Todd Robert Trask, who are not signatories hereto but are beneficiaries of the Estate of Robert Trask, Jr., and impacted by the outcome hereof, are entitled to notice and an opportunity to object in their individual capacities. To that end, each shall have ten (10) business days following service hereof and of the attached Stipulation to file and serve any objection they may have hereto, whereupon an evidentiary hearing on notice will be set by the Court for presentation of evidence supporting the relief agreed to and any facts supporting such persons' objections thereto.
On April 11, 2017, the attorney for James and Todd entered an appearance on their behalf. According to Vicki's testimony, James subsequently called her and told her that the items in her possession "were his grandmother's, that they belong to Todd and him, and that he was sending movers to pick them up." On April 16, 2017, Vicki gave the items to Clear Lake Movers, who picked them up for James. On April 21, 2017, James and Todd filed an "Objection to Proposed Family Settlement Agreement" alleging that Texas law required the joint consent of James and Vicki to bind Robert's estate. They also alleged that Vicki was not a beneficiary of the Trust, that she had no economic interest in further distributions from the Trust since the distributions would go not to Robert's estate but directly to James and Todd, and that James and Todd were necessary parties to any family-settlement agreement. They requested an evidentiary hearing.
The circuit court held a hearing on May 24, 2017, regarding their objection to the family-settlement agreement. At the hearing, their attorney argued that the agreement was not binding on them because James and Vicki were coadministrators of Robert's estate, and thus both must have signed the agreement on its behalf. They claimed that Vicki and James had agreed in their application for coadministration that all decisions relating to the estate must be made jointly and therefore that Vicki did not have the authority to act independently. Jeffrey's attorney introduced a copy of the Texas probate court's order, which did not include the requirement that all decisions be made jointly and appeared to allow either Vicki or James independently to bind the estate. The court entered an order on June 2, 2017, finding that Vicki had the apparent and actual authority to bind Robert's estate and overruled James and Todd's objection. The court ordered that the family-settlement agreement "shall be carried out and performed by the parties with all reasonable haste."
On July 10, 2017, Ms. Copeland, as personal representative of the Carroll Estate, filed an "Emergency Petition for Order of Immediate Delivery and Petition to Show Cause" alleging that the court had overruled the objection of James and Todd to the family-settlement agreement and that James had removed the items the agreement required Vicki to return to the Carroll Estate. She asked the court to enter an order requiring James to personally appear and show cause why he should not be held in contempt of the June 2, 2017, order. She also asked the court to compel immediate delivery of the items.
On July 13, 2017, James and Todd filed an objection to the court's June 2 order pursuant to Arkansas Code Annotated section 28-1-116(d), alleging that an enforceable contract existed between Vicki and James that required them both to consent to any action taken on behalf of Robert's estate; that even if Vicki had authority to bind the estate independently, the Estate of Robert Trask had no interest in the Carroll Estate, and, therefore, Robert's estate had no standing to enter into the family-settlement agreement; that Robert's share of the Trust passed to his descendants, James and Todd, upon his death; and that they were denied due process by not being served with notice and the opportunity to participate in all proceedings and negotiations regarding the family-settlement agreement.
On July 17, 2017, James and Todd responded to the Carroll Estate's petition for order of immediate delivery and to show cause. They alleged that they had made a limited appearance to object to the family-settlement agreement and that the court did not have personal jurisdiction over them because they had not been served.
They alleged that the family-settlement agreement spoke for itself but that they were not parties to that agreement and had no obligations arising from it. Finally, they contended that they intended to appeal from the June 2, 2017, decision of the court upon entry of a final order of distribution and had filed an objection to the order to preserve their right to appeal. They requested the circuit court to dismiss the Carroll Estate's petition.
Jeffrey responded to James and Todd's objection to the June 2 order, alleging that the court had already heard and addressed the arguments regarding the Texas probate order and that the arguments regarding Vicki and the Estate of Robert Trask's lack of standing were waived because they were not raised at the hearing. In a cross-motion, Jeffrey claimed that all parties with standing to consent or object to the family-settlement agreement were signatories thereto, that the court had properly overruled James and Todd's objection to the agreement, and that James and Todd had deliberately disobeyed the court's order by their actions. He asked the court to set a hearing at which Karen Copeland, Vicki Trask, James Trask, and Todd Trask were commanded to appear; to compel James and Todd to bring the property belonging to the Carroll Estate; and for a finding of contempt and consequent punishment.
James and Todd filed a supplemental response contending that the circuit court lacked jurisdiction over personal property allegedly belonging to Lavon Carroll and that the court lacked personal jurisdiction over James. James alleged that the court lacked power to command his personal appearance, to require him to transport property from Texas to Arkansas, or to hold him in contempt of an order the court lacked in rem jurisdiction to enter. Finally, James alleged that if the executrix of the Carroll Estate desired to litigate title to property, she should open ancillary proceedings in Texas against the Estate of Robert Trask and that she had no remedy in the Arkansas probate court regarding property in Texas. James alleged that the Carroll Estate could, alternatively, distribute the Carroll Estate's assets, including any interest in the disputed items in Texas, to the Trust and close the Carroll Estate. He claimed that the Trust could then litigate ownership of the items in Texas.
The circuit court held a hearing on September 26, 2017, at which neither Todd nor James appeared. The only testimony was from Vicki, who testified that James had called her and threatened that he would "sue her" if she did not give him the disputed items. He told her that the items had been his grandmother's, that they belonged to Todd and James, and that he was sending movers to retrieve them, which he subsequently did on April 16, 2017. After arguments of counsel, the court noted on the record that it was finding that the disputed items-which it referred to as "knick-knacks" and "junk"-belonged to the Carroll Estate, that the value of the items was less than had been expended on attorneys in that day's hearing, and that although James and Todd were in contempt of court for failing to attend, the court was not going to require the Carroll Estate to pursue the matter further, opining that it would be a waste of the Carroll Estate's assets. The court then stated, "If the trust wants to do that, your client is the Trustee and he can do it now or later in Texas with a writ of replevin or though criminal action, if necessary."
The court entered an order on October 19, 2017, finding that it had entered an order on March 28, 2017, approving the family-settlement agreement. The court also found that Vicki had agreed to transport certain items of personal property to Jeffrey for disposition under the agreement; that the court had denied the objections of James and Todd to the agreement; and that James had caused the Estate's personal property to be removed from Vicki's possession to a storage facility in Texas owned by the Estate of Robert Trask, which precipitated the filing of the petitions and motions before the court. The court then found that "the Trustee of the Sole Beneficiary Jeffrey Trask may at his own expense act as agent of the Estate take proper legal action through Texas courts to retrieve any Estate Property for administration herein." The court also overruled James's objections to its exercise of personal jurisdiction over him, finding that he had waived any objection when he entered his appearance in the matter. Jeffrey timely appealed from the court's October 19, 2017, order. James filed a cross-appeal, which Jeffrey has moved to dismiss.
I. Jurisdiction
We turn first to our jurisdiction and Jeffrey's motion to dismiss. The timely filing of a notice of appeal is a jurisdictional prerequisite for this court. Sloan v. Ark. Rural Med. Practice Loan & Scholarship Bd. , 369 Ark. 442, 255 S.W.3d 834 (2007). Appellant filed his notice of appeal on Monday, November 20, 2017, from the court's interlocutory order entered on October 19, 2017. Rule 2(a)(12) of the Arkansas Rules of Appellate Procedure-Civil and Arkansas Code Annotated section 28-1-116 (Repl. 2012) allow a party to appeal all orders in probate cases at the interlocutory stage with certain exceptions not relevant here. Because Jeffrey's notice of appeal was filed within thirty days from entry of the order he is appealing, we have jurisdiction over the appeal. Ark. R. App. P.-Civ. 4(a) (2017).
A notice of cross-appeal must be filed within ten days after receipt of the notice of appeal, except that in no event shall a cross-appellant have less than thirty days from the entry of the order appealed. Id. In this case, James filed a motion in this court on December 21, 2017, alleging that the notice of appeal had not been served on him until December 18, 2017. The record had been filed with the court of appeals on December 19, 2017. James contended that he desired to file a cross-appeal challenging the validity of the family-settlement agreement and asked us to remand the case to the circuit court to permit him to file a notice of cross-appeal. We granted that motion, and James filed a notice of cross-appeal in the circuit court on February 9, 2018, to raise "the validity of the purported Family Settlement Agreement approved on intensive [sic] basis by the Court on the 2nd day of June 2017. James Trask also Cross-Appeals the factual and legal finding of the Court by Order entered October 19, 2017."
In his brief to this court, James's only point on cross-appeal is that the family-settlement agreement is invalid. He contends that the order approving the agreement was entered on June 2, 2017, and that he filed an objection to that order pursuant to Arkansas Code Annotated section 28-1-116 within sixty days to preserve his right to appeal from the decision. He argues that this court should consider his cross-appeal if it entertains Jeffrey's interlocutory appeal from the court's October 19, 2017, order because the October order is premised on the validity of the family-settlement agreement, which was upheld in the court's June order. He cites no law to support this argument.
We turn to Rule 2(a)(12) of the Arkansas Rules of Appellate Procedure-Civil, which authorizes interlocutory appeals in probate cases as long as they are timely filed. See In re Estate of Stinnett , 2011 Ark. 278, at 6, 383 S.W.3d 357, 360 ("[I]f an order is appealable under Rule 2(a), it must be appealed within the thirty days after entry of the order as prescribed by Rule 4(a)."). James did not file a notice of appeal within thirty days from the court's order entered on June 2, 2017. While we recognize that Arkansas Code Annotated section 28-1-116(d) provides that an appeal from a "final order of distribution" brings up for review all prior, appealable orders and judgments to which an appellant has filed timely written objections, this is not an appeal from a final order of distribution. See also Lenders Title Co. v. Chandler , 353 Ark. 339, 349, 107 S.W.3d 157, 163 (2003) (rejecting argument that previous interlocutory order was appealable because the grounds supporting the order were "intertwined with" and "underlying" the properly appealed interlocutory order of class certification). Accordingly, we do not have jurisdiction to hear a cross-appeal advancing a challenge to the order entered on June 2, 2017, and we dismiss it. Because the cross-appeal contains no additional points, we dismiss the cross-appeal in its entirety.
II. Court's Failure to Enforce the Family-Settlement Agreement
For his first point on appeal, Jeffrey contends that the circuit court's refusal to enforce the family-settlement agreement-specifically, its refusal to force James to appear for examination and its refusal to order immediate delivery of the items of personal property being held by him in Texas-constitutes error. He argues that in the family-settlement agreement Vicki made concessions and obtained benefits on behalf of Robert's estate. He contends that there was consideration flowing from and to Robert's estate and that the family-settlement agreement is not ambiguous. He also argues that the circuit court made it clear that Vicki had the authority independently to bind Robert's estate and therefore it was required to compel James's testimony and force him to return the property that Vicki had agreed to return. Jeffrey recognizes that the court found James in contempt at the hearing for failing to appear, and he acknowledges that sanctions are discretionary with the court. He argues, however, that it was error for the court to decline to award sanctions intended to coerce return of the assets.
We review probate proceedings de novo, and we will not reverse the decision of the circuit court unless it is clearly erroneous. Buchte v. State , 337 Ark. 591, 990 S.W.2d 539 (1999). In reviewing the proceedings, we give due regard to the opportunity and superior position of the circuit court to determine the credibility of the witnesses. Amant v. Callahan , 341 Ark. 857, 861, 20 S.W.3d 896, 898 (2000). We turn to Arkansas law for guidance. Jeffrey relies on Arkansas Code Annotated section 28-49-103, which provides the following:
(a) If a personal representative or other person interested in the estate files with the court an affidavit stating that the affiant has good cause to believe that any person named in the affidavit has knowledge concerning or possession of any real or personal property or of any records, papers, or documents belonging to the decedent, or which affect his or her title to or rights in any property, the court shall have the power to cause the person to appear before the court and be examined on oath for the discovery of the same.
(b) Any person failing to appear when ordered or refusing to answer proper questions shall be adjudged guilty of contempt of court and punished accordingly.
This statute does not authorize a circuit court to force someone to give property to an estate simply because "a person interested in the estate" believes that it belonged to the decedent. This statute authorizes a circuit court "to cause the person to appear before the court and be examined on oath for the discovery of the same." And while Jeffrey hints at the remedy of replevin, he did not pursue an action for replevin in this case. The above-quoted statute does not authorize replevin, and we need not decide whether such a remedy would have been appropriate here regarding property located in Texas and over which the parties disagree about ownership. Moreover, when ownership is disputed, as here, this statute does not empower a circuit court to adjudicate the right of possession. See also Raymond v. Raymond , 134 Ark. 484, 488, 204 S.W. 311, 312 (1918) (holding that the circuit court "had no jurisdiction of a suit to recover possession of the property [and that] the jurisdiction of the court was limited to a discovery of the property and an order to deliver the same where there was no claim of ownership on the part of the person holding possession, but the court had no power to adjudicate the right of possession where there was a claim of ownership on the part of the person in possession").
At the request of Jeffrey's attorney, the court stated from the bench that James and Todd were in contempt of court for not appearing. The court explained that it was not, however, directing the Estate to pursue the matter. However, the court's written order, apparently prepared by Jeffrey's attorney, did not include this finding of contempt. Indeed, the order contains no ruling at all on contempt or punishment therefor. An oral order announced from the bench does not become effective until reduced to writing and filed. Ashley Bancstock Co. v. Meredith , 2017 Ark. App. 598, at 14, 534 S.W.3d 762, 770. Thus, the issue of contempt is not before us.
III. Court's Modification of Family-Settlement Agreement
For his second point on appeal, Jeffrey argues that the circuit court erred in modifying the family-settlement agreement. Specifically, he argues that the circuit court's failure to require James to deliver the disputed property to Arkansas constitutes a modification of the agreement. We disagree. The court failed to grant Jeffrey the remedy he sought. It did not modify the agreement. Vicki agreed to deliver the disputed items to Jeffrey. James was not a party to the agreement, did not agree to give Jeffrey any property, did not execute the agreement, and openly disputes ownership of the property. The court simply failed to require him to give Jeffrey the property. It did not modify the agreement, and it did not prohibit him from pursuing recovery of the property in another forum.
Affirmed on direct appeal; cross-appeal dismissed without prejudice.
Virden and Whiteaker, JJ., agree.
Vicki Trask, Robert's wife and his children's stepmother, and James Trask, one of Robert's sons, were appointed by a Texas probate court as independent coadministrators of Robert's estate.
This statute provides:
When an appeal is taken from the order of final distribution in the administration of a decedent's estate, all prior appealable orders and judgments to which the appellant has filed objections in writing within sixty (60) days after the order of judgment was rendered and from which an appeal has not been taken, except orders admitting or denying the probate of a will or appointing a personal representative, shall be reviewed at the election of the appellant. | [
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ROBERT J. GLADWIN, Judge
Yuniesky Hernandez-Diaz was convicted on July 2, 2018, in the Prairie County Circuit Court of fleeing and possessing a controlled substance with the purpose to deliver. He argues that there was insufficient evidence to support the fleeing conviction and that his case must be remanded for correction of clerical errors in the sentencing order. The State opposes his sufficiency argument but concedes that the errors in the sentencing order should be corrected. We affirm and remand to correct clerical errors in the sentencing order.
I. Facts
Hernandez-Diaz was charged by criminal information with possessing more than twenty-five pounds of marijuana and felony fleeing. At his trial, William Basore, a K9 police officer with the Hazen Police Department, testified that he had been patrolling the interstate on December 21, 2016, when he observed Hernandez-Diaz's vehicle cross the fog line. Basore activated his lights and siren, but Hernandez-Diaz increased his speed to 115 miles an hour and did not stop. Basore called for backup, and he testified that Hernandez-Diaz continued "on the south side or the shoulder of the interstate to pass cars going that way. When he couldn't get over to the south side, he would continuously pass cars using both shoulders." The chase continued for about twenty-two miles. The Arkansas State Police were contacted, and officers deployed spike strips as Hernandez-Diaz approached, and he hit the strips, deflating his front tires. Hernandez-Diaz continued for another two miles before veering off the roadway and crashing in the woods. He jumped out of his vehicle on the passenger side and ran into the woods, leaving behind a black bag filled with what later was discovered to be baggies of marijuana. After Basore's police dog helped to follow and apprehend him, Hernandez-Diaz complied with the officers, and he was taken to jail. Officers then searched his vehicle, finding several large bags of marijuana in the backseat.
Conley Busselle, an investigator for the Central Arkansas Drug Task Force, testified that he assisted the Hazen police and retrieved the marijuana for processing. He photographed it, weighed it, placed it in boxes, and took it to the Arkansas State Crime Lab for analysis. He said that the marijuana in its packaging weighed 27.4 pounds and that he had weighed each bag separately. The packaging was vacuum-sealed freezer bags. Dan Hedges, a forensic scientist for the Arkansas State Crime Lab, testified that the evidence tested positive for marijuana. He said that he had weighed the bags labeled 1 through 14 of the twenty-six bags of evidence and that an approximate weight for the entirety of the marijuana was 23.97 pounds.
Hernandez-Diaz moved for a directed verdict at the close of the State's evidence, arguing that insufficient evidence was presented by the State to prove possession of a controlled substance in excess of twenty-five pounds and that all the elements of fleeing had not been met because the officers' testimony did not establish that anyone was put at risk. The trial court denied the motion.
II. Sentencing Order
The jury found Hernandez-Diaz guilty of fleeing by means of a vehicle under certain circumstances manifesting extreme indifference to the value of human life, purposely operating the vehicle in a manner that created a substantial danger of death or serious physical injury. Further, the jury found him guilty of possessing less than twenty-five pounds of marijuana with the intent to deliver. However, the sentencing order reflects that he was convicted of possessing more than twenty-five pounds of marijuana and fleeing on foot rather than by vehicle. This appeal timely followed.
III. Standard of Review
Arkansas law treats motions for directed verdict as challenges to the sufficiency of the evidence. Holloway v. State , 2011 Ark. App. 52. When the sufficiency of the evidence is challenged in a criminal conviction, our court views the evidence in the light most favorable to the verdict and considers only the evidence supporting it.
Adkins v. State , 371 Ark. 159, 264 S.W.3d 523 (2007). We will affirm if the finding of guilt is supported by substantial evidence. Id. Substantial evidence is evidence of such sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Fernandez v. State , 2010 Ark. 148, 362 S.W.3d 905.
IV. Fleeing Conviction
Hernandez-Diaz argues that there was insufficient evidence to support his fleeing conviction. Arkansas Code Annotated section 5-54-125(d)(2) (Supp. 2017) provides:
Fleeing by means of any vehicle or conveyance is considered a Class D felony if, under circumstances manifesting extreme indifference to the value of human life, a person purposely operates the vehicle or conveyance in such a manner that creates a substantial danger of death or serious physical injury to another person.
Hernandez-Diaz contends that there was insufficient proof that he had purposely operated his vehicle in a manner that created a substantial danger of death or serious physical injury to another person. He also claims that there was insufficient evidence of circumstances manifesting his extreme indifference to the value of human life.
He claims that Officer Basore did not call off the pursuit because Basore did not believe the situation merited such. See Donaldson v. State , 2016 Ark. App. 391, 500 S.W.3d 768. He also points to the testimony that the weather was clear and the road was not wet. He argues that there was no evidence that his manner of driving caused any serious physical injury or that he was involved in a crash with another vehicle. He claims that no one was forced off the road and that there was no evidence of a narrowly escaped collision. See Pierce v. State , 79 Ark. App. 263, 86 S.W.3d 1 (2002) ; Weeks v. State , 64 Ark. App. 1, 977 S.W.2d 241 (1998). Accordingly, he asserts that there was insufficient evidence that he operated his car in such a way as to create a substantial danger of death or serious physical injury to another or under circumstances manifesting an extreme indifference to the value of human life.
The State argues that, viewed in the light most favorable to the verdict, the testimony of Officer Basore provided substantial evidence that Hernandez-Diaz operated a vehicle in such a manner as to create a substantial danger of death or serious physical injury to others. Hernandez-Diaz failed to yield and was pursued for twenty-four miles during hours of darkness. He traveled at speeds approaching 115 miles an hour and repeatedly drove on both the north and south shoulders of the interstate in order to pass other cars occupying the eastbound lanes of traffic. Finally, after running over spike strips, he drove on deflated tires for another two miles before crashing into the woods. Because there is "not an exhaustive list of examples of conduct that constitutes purposely driving in a manner that creates a substantial danger of death or serious physical injury," the jury could use its common sense to conclude that Hernandez-Diaz endangered others and manifested extreme indifference to human life. Donaldson , 2016 Ark. App. 391, at 4, 500 S.W.3d at 771.
Hernandez-Diaz counters that speed and distance are insufficient evidence of creating a substantial danger of death or serious physical injury. He contends that additional factors are necessary in cases involving the speed of a pursuit in relation to fleeing. He cites a Connecticut case involving reckless driving and reckless endangerment, State v. Stevens , 37 Conn.Supp. 661, 433 A.2d 1022, 1023 (1981), which states, "While speed alone is insufficient to warrant conviction, it may be taken into consideration with other circumstances to show a reckless disregard of consequences." He contends that Medley v. State , 2016 Ark. App. 79, is an example of other factors that included fleeing through a busy intersection and through a busy gas-station parking lot; and in Barber v. State , 2010 Ark. App. 210, 374 S.W.3d 709, the fleeing defendant struck an SUV, causing it to flip. Finally, he argues that in Donaldson , supra , the defendant fled during heavy rain and dangerous conditions. He maintains that the State failed herein to adduce any additional evidence beyond the distance of the pursuit or his top speed during it. Thus, he argues that insufficient evidence supports his conviction.
We disagree and affirm. Fleeing for twenty-two miles at speeds of 115 miles an hour; passing cars on the shoulder of the interstate; stopping only because the Arkansas State Police have placed spike strips over the interstate; fleeing for two more miles on deflated tires; crashing to a stop off the road; and running away from police into the woods is substantial evidence supporting the fleeing conviction.
V. Sentencing Order Errors
The trial court is free to correct a clerical error to have the judgment speak the truth. Carter v. State , 2019 Ark. App. 57, 568 S.W.3d 788 ; Jefferson v. State , 2017 Ark. App. 536, 532 S.W.3d 593. This court remands to the trial court for correction of a sentencing order in cases where clerical errors occur. See Carter , supra ; David v. State , 2019 Ark. App. 74 ; Norman v. State , 2018 Ark. App. 194, 545 S.W.3d 249 ; Cox v. State , 2014 Ark. App. 321.
Hernandez-Diaz contends that this case should be remanded for the sentencing order to be corrected. The State agrees. At trial, the jury found that Hernandez-Diaz possessed between four ounces and twenty-five pounds of marijuana in violation of Arkansas Code Annotated section 5-64-436(b)(3) (Repl. 2016), a Class C felony. However, the sentencing order incorrectly reflects the jury's determination, stating that he was convicted of violating section 5-64-436(b)(4) (possession of twenty-five to one hundred pounds of marijuana), a Class B felony. Further, the sentencing order incorrectly states that Hernandez-Diaz was convicted of fleeing in violation of Arkansas Code Annotated section 5-54-125(c)(3) (fleeing on foot), rather than the correct subsection, which is (d)(2) (fleeing by means of a vehicle). Accordingly, we remand for the trial court to correct the sentencing order to reflect Hernandez-Diaz's convictions under Arkansas Code Annotated sections 5-64-436(b)(3), a Class C felony, and 5-54-125(d)(2).
Affirmed and remanded to correct the sentencing order.
Switzer and Hixson, JJ., agree. | [
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LARRY D. VAUGHT, Judge
Brandon Philpott appeals his conviction by a Benton County Circuit Court jury of one count of criminal mischief and one count of domestic battering. He argues that the circuit court erred in refusing to strike two potential jurors and in allowing the State to introduce evidence of Philpott's prior bad acts. We affirm.
This case arises out of a July 29, 2018 domestic dispute between Philpott and his mother, Pam, with whom he lived. Philpott acknowledges in his brief that he became angry and began throwing objects around the house and that during the incident he threw an item at Pam that hit her and caused serious injuries.
Prior to trial, Philpott filed a motion in limine to exclude evidence of his prior conviction for domestic battering. Although the State argued that the prior conviction was admissible under Rule 404(b) of the Arkansas Rules of Criminal Procedure, the court granted Philpott's motion to exclude it unless Philpott opened the door to such testimony.
During voir dire, a few panel members indicated a desire to hear from the defendant and have him testify to his side of the story. Philpott challenged two of the panel members for cause-Mr. Spotts and Mr. Oxford-and the court denied both requests to strike, finding that both men had indicated that they could be fair and impartial. Philpott then used his last peremptory challenge to strike Mr. Spotts but was forced to accept Mr. Oxford. Although he stated prior to trial that he did not intend to testify, Philpott did choose to testify. He argues that this was due to the court's refusal to strike Mr. Oxford, who had indicated a desire to hear him testify.
Philpott's former wife testified at trial. During her cross-examination, the State questioned her about Philpott's history of destroying property when angry. Philpott objected, arguing that the questions were prohibited under the court's ruling on the motion in limine. The State argued that the motion in limine and the court's ruling had covered only his prior conviction for domestic battering, which was a different issue than his habit of destroying property. The circuit court allowed the testimony.
The jury convicted Philpott on both counts and sentenced him to thirty years' imprisonment and a $ 10,000 fine. This timely appeal follows.
"The decision to excuse a juror for cause rests within the sound discretion of the trial court and will not be reversed absent an abuse of discretion." Holder v. State , 354 Ark. 364, 383, 124 S.W.3d 439, 452-53 (2003) (quoting Nooner v. State , 322 Ark. 87, 907 S.W.2d 677 (1995) ). "Persons comprising the venire are presumed to be unbiased and qualified to serve." Holder , 354 Ark. at 383, 124 S.W.3d at 452-53 (quoting Taylor v. State , 334 Ark. 339, 347, 974 S.W.2d 454, 459 (1998) ).
The admission or rejection of testimony is a matter within the circuit court's sound discretion and will not be reversed on appeal absent a manifest abuse of that discretion and a showing of prejudice to the defendant. Solomon v. State , 2010 Ark. App. 559, 379 S.W.3d 489. An abuse of discretion is a high threshold that does not simply require error in the circuit court's decision but requires that the trial court acted improvidently, thoughtlessly, or without due consideration. Harris v. State , 2018 Ark. App. 219, 547 S.W.3d 709.
Philpott's first argument on appeal is that the circuit court erred in denying his request to strike panel members Spotts and Oxford for cause. Because Philpott exercised a peremptory challenge to remove Spotts, his qualification to serve on the jury is not properly before us on appeal. He did not actually serve on the jury, and in Willis v. State our supreme court explained:
[w]e do not address this claim of error because it pertains to venirepersons that appellant excused through the use of his peremptory challenges. It is well settled that the loss of peremptory challenges cannot be reviewed on appeal. The focus should not be on a venireperson who was peremptorily challenged, but on the persons who actually sat on the jury. Because Ms. Howard and Ms. Wooley were not seated on the jury, we need not consider whether they should have been struck for cause.
334 Ark. 412, 420, 977 S.W.2d 890, 894 (1998) (internal citations omitted).
Therefore, the only issue before us is whether the court erred in denying Philpott's for-cause challenge to Oxford. We see no reversible error and affirm. When asked if anyone would hold it against Philpott if he decided not to testify, Oxford said, "I would like to hear from him, but that wouldn't keep me from ... [weighing all the other evidence]." He affirmatively stated that he would not hold it against Philpott if he decided not to testify. Given our standard of review, we hold that the circuit court did not abuse its discretion when it found that Oxford was sufficiently rehabilitated to serve on the jury.
Philpott also argues that the court's refusal to strike Oxford forced Philpott to testify when he otherwise would not have chosen to do so, which he argues violated his Fifth Amendment right to remain silent. Philpott did not preserve this argument below. He requested that Oxford be struck for cause but did not argue that the court's denial of that request would somehow violate his Fifth Amendment right not to testify. He later took the stand without raising the issue to the court. We will not consider arguments that are raised for the first time on appeal, and a party is bound on appeal by the nature and scope of the objections and arguments presented at trial. Lopez-Deleon v. State , 2014 Ark. App. 274, at 6-7, 434 S.W.3d 914, 918.
Philpott's second point on appeal is a challenge to the court's admission of testimony related to Philpott's history of destroying property when he is angry. Philpott argues that this evidence should have been excluded under the court's ruling on the motion in limine as it related to prior bad acts. However, the court's original ruling specifically dealt only with evidence of his former conviction for domestic battering, not his habit of destroying property, and Philpott failed to preserve a challenge to the destruction-of-property testimony as a separate issue from his prior conviction. When the State asked Philpott's former wife about instances when he had purposely destroyed property while angry with her, the defense objected, claiming that the court had already ruled on the motion in limine as to Philpott's "history with this specific witness." The State countered that the motion had dealt only with his prior battery, not property damage, and that it was not planning to elicit testimony regarding any prior acts of battery. The defense made no further argument that the testimony should be excluded. As such, the court never had an opportunity to rule on Philpott's current argument that the testimony regarding his history of property damage was inadmissible under Rule 404(b). We do not reach the merits of this point because he failed to preserve this issue for appellate review. Lopez-Deleon , 2014 Ark. App. 274, at 6-7, 434 S.W.3d at 918.
Affirmed.
Klappenbach and Whiteaker, JJ., agree. | [
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RITA W. GRUBER, Chief Judge
Steven Swanigan was convicted by a Garland County Circuit Court jury of one count of first-degree murder and two counts of first-degree battery for entering an apartment in Hot Springs and firing multiple gunshots killing Mayela Mata and injuring her twenty-month-old daughter and a friend, Antouin Bond. On recommendation of the jury, the circuit court sentenced Swanigan to an aggregate term of 720 months' imprisonment. He raises six points for reversal. We reject them and affirm his convictions.
I. Facts
Mayela Mata and her fiancé, Terrence Scott, lived with their daughter, ES, in a townhouse apartment at 200 Springwood in Hot Springs. At around 5:00 p.m. on April 30, 2014, several people, including Terrence's friend Antouin Bond, were at the apartment when two masked men came to the door, and one rushed inside, opened fire, killed Mayela, and injured ES and Antouin.
Terrence Scott testified that Mayela and ES were in the living room and that he, Antouin, and Terrence's brother Joseph were preparing to smoke marijuana in the kitchen when Terrence saw a "tall, skinny, black male with some really distinguished eyes" come in holding two guns with extended clips. A bandana covered the man's face except for his "big ole bug eyes." The man said either "get down" or "lay down," and he immediately began shooting. According to Terrence, a second man was with the shooter, but Terrence did not know whether that man had a gun. Terrence saw Mayela fall and saw part of her brain on the floor. After the shooter left, Terrence learned that Antouin and ES had both been shot. Terrence also testified that he had known Swanigan for twenty years and often saw him at Oaklawn Racetrack. Terrence said that Swanigan would "always be in Polo, you know, fresh starched clothes, Polo boots, Jordans."
Antouin described the shooter as a tall, slim man with dark skin. He said the shooter was holding two guns, and one of them had a long clip. He was not sure about the other gun. He said he believed the shooter spoke a few words before he began shooting. Antouin testified that he had been in school with Swanigan for only one year but had known him for about twenty years. Terrence's brother Joseph testified that the shooter had two guns, was very slim, and was wearing a hat and a bandana. He said that he had big eyes, "real bug eyes."
Natasha Jones testified that she and her husband lived in the apartment building right next to Terrence's building, about ten to fifteen feet away from Terrence's apartment. She said that at the time of the incident, she was upstairs in her bedroom and heard what sounded like fireworks outside. She looked out her blinds to check on her son, who was outside playing, and saw a white car with a blue top directly below her window. She said she saw a skinny, dark arm holding a black gun out of the passenger side window. According to Natasha, the car appeared to have a busted oil pan and it started to stall on its way out of the apartment complex. She heard screaming and went to Terrence's apartment where Terrence handed ES to her. She said that ES had a gunshot wound that went through her back and out her front near her left lung and heart and there was blood coming out of her mouth. Natasha's husband called 911.
Criminal investigator Russ Rhodes with the Arkansas State Police testified that he arrived on the scene at 5:37 p.m. He said that he saw what appeared to be automotive fluid in the driveway of the parking lot. He also described the items collected at the scene, which included a .40-caliber spent shell casing to the right of the front door, three nine-by-eighteen Makarov shell casings inside the front door, and several .40-caliber TulAmmo shell casings inside the front door and on the couch.
Jennifer Floyd from the State Crime Laboratory examined the ammunition found at the scene. She testified that the three expended TulAmmo .40-caliber cartridge cases had all been fired from the same gun. She also said there were three spent 9-millimeter Makarov caliber Hornady cartridge cases, all fired from the same gun.
Officer Corwin Battle, a special agent with the Arkansas State Police, testified that he recovered the surveillance video of the apartment parking lot for the time of the incident. He testified that the video depicted a Cadillac driving up to the apartment complex, two males getting out, one going inside Terrence's apartment, and the other stopping at the door. The video shows both men running to the car, jumping in, and leaving. The video was introduced into evidence and played for the jury. The video shows that there is no fluid in the parking space before the Cadillac drives up. After the Cadillac leaves the parking space, there is what appears to be a trail of fluid and the car can be seen as it stalls, tending to confirm Natasha's testimony about the Cadillac.
Deputy Phil Fisher of the Garland County Sheriff's Department testified that he had been dispatched to 115 Oak Hill in Hot Springs on an unrelated matter around 12:30 or 1:00 p.m. on April 30, 2014. At that time, he noticed a white Cadillac with a blue landau top parked in front of the home. He went back to the Oak Hill address around 4:00 or 4:30 p.m. and again saw the white Cadillac in the driveway. Two black males dressed in Polo-type shirts and jeans were working on the Cadillac. He testified that shortly after he heard the dispatch about the shooting and that the suspect vehicle was a white Cadillac with a blue landau top, he again went to the Oak Hill address where he saw the Cadillac with the passenger door open. He said that the hood of the vehicle was warm.
Lieutenant Russell Severns, an investigator with the Garland County Sheriff's Department, was sent to 115 Oak Hill after the shooting to investigate. As he was photographing the Cadillac, he noticed vehicle fluid leading to the car and followed the trail of fluid on foot to the intersection of Oak Hill and Airport Road. He got in his car and followed the trail, which he said was not difficult to see. He said that the fluid trail did not follow the most direct route, but took a back way leading to the apartment complex at 200 Springwood. The fluid trail went past a Sonic Drive-In at the corner of Airport Road and Danna Drive.
Lieutenant Severns retrieved the video footage from the security cameras at the Sonic, which showed a white Cadillac with a blue top driving the wrong direction through the Sonic parking lot at 4:55 p.m. on April 30, 2014. Lieutenant Severns also interviewed a Sonic employee, Jordan Garner, who saw the Cadillac driving the wrong way through the parking lot at a high rate of speed between 4:30 and 5:00 p.m. that day. She thought it was odd and looked to see who was driving the car. Jordan testified at trial that she looked directly at the driver, whose eyes stood out to her. She said that there was another person in the car, but she did not look directly at him. The day after the shooting, she identified Swanigan as the driver from a photo lineup.
Lieutenant Joel Ware of the Garland County Sheriff's Department testified that he also observed liquid in the roadway at 115 Oak Hill and took a video of the fluid trail from there to the apartment complex on Springwood. The video was played for the jury.
Ciara Morgan testified that her child's father, who was a friend of Swanigan's, was in jail at the time of the incident. He had previously parked his white Cadillac with a blue soft top in her yard. She testified that Swanigan came to her workplace before 3:00 p.m. on April 30 and asked to borrow the Cadillac because he did not want to use his own car. She said that Swanigan and another man she did not know, whom she later identified in a photo lineup as Benjamin Pitts, arrived at her house on Oak Hill shortly after 3:00 p.m. She said that she gave Swanigan the key to the Cadillac and warned him that the car leaked power-steering fluid and had problems starting.
Bobby Humphries, a latent print, shoe, and tire examiner from the State Crime Laboratory, testified that he discovered three footwear impressions in Ciara Morgan's Cadillac, two partial ones on the passenger side and one complete print on the driver's floorboard. He testified that out of a shoe-print database containing over 32,000 shoes, the only match for the driver's side impression was a Ralph Lauren Polo sport boot. His report concluded that the "source of the [driver's side] impression could have been made by a Polo Sport Boot (by Ralph Lauren)."
Amanda Thornton testified that appellant had lived with her for about two weeks at the time of the shooting. She said that he had used one of her dresser drawers to store his belongings, where a box of TulAmmo .45-caliber bullets was discovered in a search of her home. Amanda also said that Swanigan drove a Nissan Versa when he lived with her and that he wore Polo boots. On April 27, 2014, Amanda, Swanigan, and two others went to a shooting range. Swanigan shot an Uzi, a .40-caliber, a .45-caliber, and a 9-millimeter. She said that on April 29, Swanigan and Benjamin Pitts, whom she had not met until that day, took her to her court appearance and later picked her up. She said the last time she had seen Swanigan was on April 30, the morning of the shooting. He had come to the house, packed a suitcase, and told her that he would see her "in a couple of days." She also said that she gave police officers the phone numbers for two of Swanigan's cell phones: an Android touch-screen phone and a flip phone.
Lena Sanstra testified that she had known Swanigan for about sixteen or seventeen years. She said that she had loaned him a Nissan Versa in April 2014, and he had never returned it. The car belonged to Lauri Malott with whom Lena was living at the time.
Lieutenant Ware testified that he tracked Swanigan's cell phone to an Economy Inn in Conway where officers discovered the Nissan Versa. A search of the hotel room led to the discovery of a backpack containing cell phones, credit cards, a driver's license, and other items belonging to Swanigan. They also found the keys to the Versa and a .45-caliber semiautomatic handgun loaded with TulAmmo .45-caliber bullets. In a Walmart bag, officers found Federal Premium 9-millimeter ammunition along with a purchase receipt containing a time and date stamp of 8:03 p.m. on April 26, 2014, from the Walmart on Albert Pike in Hot Springs. The receipt also listed the register location, which was the sporting-goods counter. The Walmart receipt led officers to the discovery of a Walmart security video taken at the time provided on the receipt at the register, which was played for the jury. The video shows two black males purchasing the ammunition listed on the receipt, which included a box of TulAmmo .45-caliber shells, a box of TulAmmo .40-caliber shells, and a box of Federal 9-millimeter shells. A receipt from Trader Bill's, located across the street from the Albert Pike Walmart, was found in the Versa. The receipt reflected that Winchester 9-millimeter ammunition and targets were purchased at 8:26 p.m. on April 26, 2014.
Lieutenant Terry Threadgill participated in the investigation at the Economy Inn. He testified that he parked his car in the Waffle House parking lot adjacent to the motel parking lot. He saw Swanigan come out of the motel room, start down the stairs, and take off running. Lieutenant Threadgill said that he chased him but was not able to apprehend him.
Investigator Rhodes searched the contents of a cell phone discovered in the Conway motel room. The history on the phone showed an article from a Hot Springs paper about the shooting, a link to the official website of the Hot Springs Police Department, and a search of "police scanner" at 5:32 p.m. on April 30, 2014, a half hour after the shooting occurred. Investigator Rhodes also obtained photographs from Walmart of the persons who purchased the ammunition listed on the receipt found in the Conway motel: Swanigan and Benjamin Pitts.
II. Points on Appeal
A. Sufficiency of the Evidence
For his first point on appeal, Swanigan argues that the circuit court erred in refusing to grant his directed-verdict motion. A motion for a directed verdict is a challenge to the sufficiency of the evidence. George v. State , 356 Ark. 345, 151 S.W.3d 770 (2004). The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. at 350-51, 151 S.W.3d at 773. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Id. at 351, 151 S.W.3d at 773. When reviewing a challenge to the sufficiency of the evidence, the evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. Jackson v. State , 363 Ark. 311, 315, 214 S.W.3d 232, 235 (2005). We do not weigh the evidence presented at trial, as that is a matter for the fact-finder. Harmon v. State , 340 Ark. 18, 22, 8 S.W.3d 472, 474-75 (2000). Witness credibility is also an issue for the fact-finder, who is free to believe all or a portion of any witness's testimony and whose duty it is to resolve questions of conflicting testimony and inconsistent evidence. Jackson v. State , 2011 Ark. App. 528, at 6, 385 S.W.3d 394, 397. Finally, circumstantial evidence can support a conviction; whether it does so is for the jury to decide. Lowry v. State , 364 Ark. 6, 16, 216 S.W.3d 101, 107 (2005).
Swanigan argues that the evidence was insufficient to prove that he was the shooter, that he was at the crime scene at the time of the event, or that he was connected to the Cadillac involved in the shooting. He argues that the State's case rested entirely on circumstantial evidence, which failed to create a reasonable inference that he was the shooter or present inside the Cadillac. Specifically, he argues that he presented two witnesses who testified that they saw another man, Valiquese Coger, driving a white Cadillac with a blue top into the apartment complex around the time of the shooting. He also claims that no witness identified him at trial as the shooter, and while he does not dispute the evidence that he borrowed a Cadillac similar to the one used by the perpetrators, he argues there was no substantial evidence that the car he used was the one involved in the shooting. He argues that the State's evidence did not exclude every other reasonable conclusion, chiefly that Swanigan was driving a different Cadillac than the one used in the shooting.
While there was evidence that excluded Swanigan-i.e., Swanigan's DNA was not found on a glove located in the road near the Sonic parking lot, in the Cadillac Ciara Morgan loaned to Swanigan, or at the crime scene-guilt may be established without either DNA evidence or eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Jackson , 363 Ark. at 316, 214 S.W.3d at 236. The eyewitnesses to the crime in this case-Terrence, Antouin, and Joseph-testified that the shooter had his face covered except for his eyes, which Terrence and Joseph described as "bug eyes," and said only a few words. They also described the shooter as black, with dark skin, and slim. The jurors could see Swanigan in the courtroom, and a photo lineup containing Swanigan's photo was introduced into evidence for the jurors to view.
Terrence's neighbor, Natasha Jones, testified that the shooter drove up in a white Cadillac with a blue top that appeared to have a busted oil pan and repeatedly stalled as it was leaving the apartment complex. This description was confirmed by the video from the apartment complex. Swanigan does not dispute that he had borrowed Ciara Morgan's Cadillac around the time of the incident; he argues that the evidence did not demonstrate that Ciara's Cadillac was the one involved. Ciara Morgan testified that the Cadillac she loaned to Swanigan and Pitts shortly before the shooting was leaking power-steering fluid and had trouble starting. She also said that Swanigan told her he needed the Cadillac because he did not want to use his own car. Evidence showed that Swanigan had possession of a Nissan Versa at this time. Finally, evidence was presented to the jury to show that the Cadillac involved in the shooting left fluid in the parking space at the apartment complex, and testimony and a video were introduced to demonstrate that a trail of fluid led from the apartment complex to Ciara Morgan's house. Although Swanigan argues that the state crime lab did not precisely identify the fluid or connect the substance found at Ciara Morgan's property, on the fluid trail, or at the crime scene to Ciara's Cadillac, the jury heard testimony from witnesses who followed the trail of fluid and viewed the video of the trail from Ciara's home to the crime scene. Ultimately, this is a factual question for the jury.
While Swanigan points to the testimony of two defense witnesses who testified that they saw Valiquese Coger driving a Cadillac through the apartment complex at the time of the shooting, credibility and weight to be given testimony is for the jury. Further, the State presented contradictory evidence from Kenny Ford, an investigator on the case. He testified that he obtained a surveillance video from a motel across town from the shooting taken on April 30 showing Coger and another individual being dropped off by a cab at 4:33 p.m. and walking around the motel courtyard at 5:23 p.m.
Jordan Garner identified Swanigan as the driver of a Cadillac like the one involved in the shooting that went the wrong direction through the Sonic parking lot, which was on the fluid-trail route, just five minutes before the incident. Further, several witnesses testified that Swanigan always wore Polo clothing and shoes, and an imprint of what the crime-lab expert testified matched a Polo sport boot was discovered on the driver's floorboard of Ciara's Cadillac after the shooting.
Evidence was introduced to show that several days before the shooting, Swanigan and Pitts purchased ammunition of the types and brand found at the crime scene: 9 millimeter of another brand than that at the crime scene, TulAmmo .45-caliber ammunition, and TulAmmo .40-caliber ammunition. TulAmmo .40-caliber expended shells were discovered at the scene. A box of TulAmmo .45-caliber shells was discovered in a drawer where Swanigan kept his belongings at Amanda Thornton's house. The TulAmmo .40-caliber bullets purchased by Swanigan and Pitts were not found. Further, Swanigan went to the shooting range with Amanda Thornton just three days before the shooting and shot four weapons: an Uzi, a .45 caliber, a 9 millimeter, and a .40 caliber. Officers later found an Uzi and a .45-caliber semiautomatic handgun in Swanigan's belongings, but the .40-caliber weapon and the 9 millimeter weapon that Swanigan took to the shooting range three days before the crime were never located. Finally, on the morning of the shooting, Swanigan packed a suitcase and told Amanda that he was leaving for a few days.
The jury may resolve questions of conflicting testimony and inconsistent evidence and may choose to believe the State's account of the facts rather than the defendant's. Harper v. State , 359 Ark. 142, 152, 194 S.W.3d 730, 736 (2004). It is also the jury's duty to assess credibility and weight to be given to the testimony. Jackson , 2011 Ark. App. 528, at 6, 385 S.W.3d at 397. Jurors do not and need not view each fact in isolation but may consider the evidence as a whole. Price v. State , 2009 Ark. App. 664, at 2, 344 S.W.3d 678, 680-81. Finally, the jury is entitled to draw any reasonable inference from circumstantial evidence to the same extent that it can from direct evidence. Id. We hold that substantial evidence supports the jury's verdict, and the circuit court did not err in submitting the question of guilt to the jury.
B. Suppression of Jordan Garner's Pretrial Identification
For his second point on appeal, Swanigan contends that the circuit court erred in denying his motion to suppress Jordan Garner's pretrial photo-lineup identification of him. He argues that the photo lineup was unduly suggestive and unreliable. Specifically, he claims that Garner said that Swanigan's photo "was not like any of the rest." Garner had informed Officer Severns the day before the lineup that the driver had dark skin and prominent eyes and that he was wearing a white shirt. He argues that only two of the six photos depicted men wearing white shirts; one of them was Swanigan. He also argues that none of the other photos were of men with prominent eyes and only one other photo was of a man with skin as dark as Swanigan's. He also contends that Garner had only a brief opportunity to see the driver as it sped through the parking lot.
It is for the circuit court to determine whether there are sufficient aspects of reliability present in an identification to permit its use as evidence. Milholland v. State , 319 Ark. 604, 607, 893 S.W.2d 327, 329 (1995). It is then for the jury to decide what weight that identification testimony should be given. Bishop v. State , 310 Ark. 479, 839 S.W.2d 6 (1992). We do not reverse a ruling on the admissibility of identification unless it is clearly erroneous, and we will not inject ourselves into the process of determining reliability unless there is a very substantial likelihood of misidentification. Williams v. State , 2014 Ark. 253, at 6, 435 S.W.3d 483, 486.
A pretrial identification violates the Due Process Clause when there are suggestive elements in the identification procedure that make it all but inevitable that the victim will identify one person as the culprit. Ray v. State , 2009 Ark. 521, at 7, 357 S.W.3d 872, 878. Reliability is the linchpin in determining the admissibility of identification testimony. Mezquita v. State , 354 Ark. 433, 440-41, 125 S.W.3d 161, 165 (2003). The circuit court looks at the totality of the circumstances in making a reliability determination, considering the following factors:
(1) the prior opportunity of the witness to observe the alleged act; (2) the accuracy of the prior description of the accused; (3) any identification of another person prior to the pretrial identification procedure; (4) the level of certainty demonstrated at the confrontation; (5) the failure of the witness to identify the defendant on a prior occasion; and (6) the lapse of time between the alleged act and the pretrial identification procedure.
Williams , 2014 Ark. 253, at 5, 435 S.W.3d at 486.
At a hearing on Swanigan's pretrial motion in limine to exclude the results of Garner's photo-lineup identification, Garner testified that she was almost struck by a fast-moving, older-model, white Cadillac with a blue top while she was working at Sonic. She said that the car was going the wrong way through the one-way parking lot and she looked at the driver, who was looking at her, as the car passed. She said he was "really, really dark" and had "really, really like big eyes," and was wearing a white t-shirt. She said she saw a front-seat passenger but did not look directly at him. Garner said she was interviewed by officers about twenty or twenty-five minutes after her encounter with the Cadillac. She identified Swanigan as the driver in a photo lineup the next day. She said Officer Severns, who showed her the lineup, told her to pick a photo only if she recognized the person. Lieutenant Severns testified that Garner viewed the photos for a very short period of time before selecting a photo; she told him she was certain it was the driver.
We hold that the circuit court's determination that the identification was sufficiently reliable is not clearly erroneous. Garner testified that she looked directly at the driver, who was looking directly at her. She said she did not get a good look at the passenger. She described the car and the driver in detail to the officers within thirty minutes of witnessing the event. She made the photo identification of Swanigan the day after the event, and she did not identify the passenger in a different photo lineup she was presented several days later. The officer who presented the lineup to Garner said that Garner told him she was certain the person in the photo was the driver. These facts do not demonstrate that there is a substantial likelihood of misidentification; thus, we will not inject ourselves into the process of determining reliability. The weight to be accorded Garner's identification was for the jury to determine.
C. Evidentiary Admissions
For his third point on appeal, Swanigan challenges various rulings denying his motions in limine and allowing the State to introduce the evidence. Circuit courts are afforded wide discretion in evidentiary rulings. McCoy v. State , 354 Ark. 322, 325, 123 S.W.3d 901, 903 (2003). We will not reverse an evidentiary ruling absent an abuse of discretion. Hopkins v. State , 2017 Ark. App. 273, at 2, 522 S.W.3d 142, 144. Abuse of discretion is a high threshold that does not simply require error in the circuit court's decision but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Owens v. State , 2017 Ark. App. 109, at 3, 515 S.W.3d 625, 627. In addition, we will not reverse absent a showing of prejudice, as prejudice is not presumed. Hopkins , 2017 Ark. App. 273, at 3, 522 S.W.3d at 144.
1. Weapons and ammunition
Swanigan first argues that the court abused its discretion in admitting evidence of guns and ammunition that were not demonstrated to have been used at the scene of the crime. He contends that the evidence was not relevant and that any probative value was outweighed by the danger of unfair prejudice. For evidence to be relevant, it does not have to prove the entire case; rather, all that is required is that it have "any tendency" to make any fact that is of consequence to the determination of the action more or less probable. Barrett v. State , 354 Ark. 187, 198, 119 S.W.3d 485, 492 (2003). Evidence may be relevant in connection with other facts or if it forms a link in the chain of evidence necessary to support a party's contention. Conte v. State , 2015 Ark. 220, at 31, 463 S.W.3d 686, 704. Relevant evidence is any evidence that aids in establishing the guilt or innocence of the accused, even though only a slight inference can be drawn from the evidence. Id. at 31, 463 S.W.3d at 705.
Swanigan argues that an Uzi found at Amanda Thornton's home, where Swanigan was living at the time, was prejudicial and was not independently relevant. The Uzi was not introduced; the State introduced only a photo of Swanigan holding the Uzi found on his phone. Swanigan also contends that the .45-caliber gun found in the motel room in Conway was not relevant because it was not linked to the crime and was unfairly prejudicial and confusing to the jury. We hold that the circuit court did not abuse its discretion in admitting the evidence.
Evidence may be relevant and admissible if it forms a link in the chain of evidence necessary to support a party's contention and even when only a slight inference can be drawn from it. Id. Evidence was presented at trial from which the jury could have reasonably inferred that, on Saturday evening, April 26, 2014, Swanigan and Pitts purchased a box of 9-millimeter Federal ammunition, a box of .40-caliber TulAmmo ammunition, and a box of .45-caliber TulAmmo ammunition at Walmart and another box of 9-millimeter ammunition and a human target at Trader Bill's. The next day, Swanigan, Amanda Thornton, and two others went to the shooting range where they shot an Uzi, a .40-caliber firearm, a 9-millimeter firearm, and a .45-caliber firearm. Several photos of Swanigan holding the various weapons at the shooting range were introduced. One of these photos was of Swanigan holding the Uzi. Amanda testified that Swanigan brought the four guns to the shooting range in the trunk of his Versa and put them back in the trunk when they left the range. After the shooting, officers discovered an Uzi and a mostly empty box of .45-caliber TulAmmo ammunition at Amanda's house where Swanigan had been living, and they discovered a .45-caliber weapon loaded with .45-caliber TulAmmo bullets in Swanigan's Conway motel room. However, they did not find either the .40-caliber weapon or the 9-millimeter weapon Swanigan had used days earlier at the shooting range, and they did not find the .40-caliber TulAmmo bullets Swanigan had purchased at Walmart. These .40-caliber TulAmmo bullets were the type and brand of spent shells discovered at the crime scene.
This evidence showed that, of the four weapons Swanigan brought to the shooting range days before the shooting, officers found only two in Swanigan's belongings-the two that were not used in the crime. The evidence demonstrated that days before the shooting, Swanigan had possession of, and access to, both types of weapons used in the shooting, but neither of these guns was ever recovered. Evidence is relevant if it has "any tendency" to make any fact that is of consequence to the determination of the action more or less probable. Barrett , 354 Ark. at 198, 119 S.W.3d at 492 (holding that the test of admissibility of evidence over an objection for irrelevancy is whether the fact offered into proof affords a basis for rational inference of the fact to be proved and that it is sufficient if the fact may become relevant in connection with other facts, or if it forms a link in the chain of evidence necessary to support a party's contention). Because all of this evidence together could have led the jury to infer that Swanigan had disposed of the guns because they had been used in the crime, we hold that the circuit court did not abuse its discretion in admitting the evidence.
2. Purchases at Walmart and Trader Bill's
Swanigan next argues that the circuit court abused its discretion in admitting evidence that he purchased ammunition at Walmart and Trader Bill's just days before the shooting. He contends that none of the ammunition purchased was directly linked to the ammunition used in the shootings and was thus not relevant and that any probative value was outweighed by the danger of unfair prejudice and misleading the jury. The State contends that Swanigan failed to object to this evidence at trial and thus waived the issue. Swanigan filed pretrial motions to exclude the evidence. When a pretrial motion in limine has been denied, the issue is preserved for appeal, and no further objection at trial is necessary. Glover v. Main St. Wholesale Furniture, LLC , 2018 Ark. App. 152, at 5, 545 S.W.3d 245, 248.
Swanigan purchased a variety of ammunition at the two stores just days before the incident, including 9-millimeter and .40-caliber bullets, the types found at the crime scene. At Walmart on the evening of April 26, Swanigan purchased a box of TulAmmo .45-caliber ammunition and a box of TulAmmo .40-caliber ammunition. TulAmmo .40-caliber casings were discovered at the crime scene. Although officers found a box of TulAmmo .45-caliber ammunition in Swanigan's belongings, they never found the box of TulAmmo .40-caliber bullets. Swanigan also purchased 9-millimeter ammunition at Trader Bill's on the morning of April 27. After these purchases, Swanigan went to the shooting range, where he fired both a .40-caliber weapon and a 9-millimeter weapon. Again, jurors do not view evidence in isolation but as a whole and may draw reasonable inferences from the evidence. Price , 2009 Ark. App. 664, at 2, 344 S.W.3d 678. We hold the circuit court did not abuse its discretion in admitting this evidence.
3. Nissan Versa and gloves
Swanigan also challenges admission of the fact that he was in possession of a Nissan Versa around the time of the shooting and that the vehicle was seen at Bumper to Bumper thirty minutes before the shooting. There, Benjamin Pitts purchased two pairs of white gloves, got in the passenger side of the Versa, and left. He argues that the gloves from Bumper to Bumper did not match a glove found in the Sonic parking lot and that the Versa's relevance rested upon the relevance of the gloves purchased at Bumper to Bumper.
We note that Swanigan's only objection was in a pretrial motion to exclude evidence of Swanigan's "alleged ties to a Nissan Versa." He argued that he was not the owner of the car, had no ties to it, and thus it was not relevant. He made no pretrial motions or objections at trial to the photo of the gloves purchased at Bumper to Bumper.
Carlos Cockman, the manager at Bumper to Bumper, testified that a man he later identified as Benjamin Pitts came into the store about 4:20 p.m. on April 30, 2014; paid cash for two pairs of gloves; and left without getting change or a receipt. He said the man got into the passenger side of the Versa, which remained parked for a while before leaving. He said most customers park by the front door, but the Versa was parked off to the side where the employees park their cars. He thought the situation seemed odd, so he got the license-plate number. After he heard about the shooting, he called the sheriff's department.
The Versa was connected to Swanigan by Lena Sanstra, and its relevance did not rest upon the relevance of the gloves purchased at Bumper to Bumper. It was relevant because it demonstrated that Swanigan had access to the Versa at the time of the shooting yet borrowed the Cadillac because he did not want to use his car and because the jury could have inferred that Swanigan and Pitts were together in the area a mere thirty minutes before the crime. We also note that Swanigan did not make this precise argument about the gloves and the Versa to the circuit court. The circuit court did not abuse its discretion.
4. Fluid trail
Finally, Swanigan argues that the circuit court abused its discretion in admitting evidence about the "fluid trail" leading from the crime scene to Ciara Morgan's home, including the video of the fluid trail. He argues that it was irrelevant and created a danger of unfair prejudice and confusion of the issues. Specifically, he contends that there was no proof that the fluid was power-steering fluid from Ciara Morgan's Cadillac and that there was no fluid trail in the Sonic parking lot.
When Swanigan borrowed the Cadillac from Morgan, she told him it leaked power-steering fluid and had trouble starting. At the scene of the shooting, Natasha testified that the shooter's car seemed to have a busted oil pan and repeatedly stalled as it was leaving. Testimony indicated that the fluid trail was readily visible, it was observed and videoed immediately after the crime, and it led from Morgan's home directly to the scene of the crime.
Swanigan asks us to weigh this evidence. We do not weigh the evidence presented at trial, as that is a matter for the jury. Harmon , 340 Ark. at 22, 8 S.W.3d at 474-75. We hold that the circuit court did not abuse its wide discretion in admitting this evidence.
D. Right to Cross-Examine Officer Wright about Embezzlement
For his fourth point on appeal, Swanigan contends that the circuit court abused its discretion in refusing to allow him to cross-examine one of the State's witnesses about his alleged embezzlement. At a pretrial hearing, Swanigan argued that he should be allowed to question Michael Wright, the Garland County sheriff's deputy who acted as evidence custodian at the time of the shooting, about why he was no longer employed as a law-enforcement officer. At the time of the trial in this case, Wright was under investigation and had admitted to embezzling money from the Arkansas Narcotics Officers Organization. The court ruled that Swanigan could not use the prior bad act of embezzlement to impeach Wright under Arkansas Rule of Evidence 609 because there had been no conviction or under Rule 608 because embezzlement was not probative of truthfulness.
Arkansas Rule of Evidence 608(b) allows specific instances of conduct to be used to impeach a witness's credibility under the following circumstances:
(b) Specific Instances of Conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting his credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning his character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
Ark. R. Evid. 608 (2018). We specifically held in Sitz v. State , 23 Ark. App. 126, 128, 743 S.W.2d 18, 20 (1988), that embezzlement, a form of theft, is not a crime that is probative of untruthfulness and thus is not admissible under Rule 608(b). See also Arendall v. State , 2010 Ark. App. 358, at 19, 377 S.W.3d 404, 416. We decline Swanigan's invitation to revisit this decision, and we do not find the present case to be distinguishable. Accordingly, the circuit court did not abuse its discretion in refusing to allow the evidence.
E. Mistrial
Swanigan's fifth point on appeal is that the circuit court abused its discretion by denying his motion for mistrial after Amanda Thornton testified that Swanigan had been "incarcerated for a while." Swanigan had been living with Amanda at the time of the shooting. At the start of her testimony, after asking her to state her name, the prosecutor asked Amanda how long she had known Swanigan. She testified that she had known him since she was twelve or thirteen years old. The prosecutor then asked her if she had kept up with him since that time. She replied, "Not really. He was in-yes, to a point I have. He was incarcerated for a while, so ...." The examination then continued without objection:
PROSECUTOR : So you've known him since you were a child. I'm going to take you back to April of 2014. Where were you living at that time?
THORNTON : On Frona.
PROSECUTOR : I'm sorry?
THORNTON : On Frona Street.
PROSECUTOR : Frona. And who was living with you?
THORNTON : Me and my son, and [Swanigan], occasionally.
PROSECUTOR : And about what time or about what part of the month of April did he start living with you?
THORNTON : Towards the end of it probably-or the middle.
PROSECUTOR : Towards the middle of April. And about how long did he live with you?
THORNTON : Maybe two weeks.
PROSECUTOR : And did he move any clothing in or any items?
THORNTON : Yeah. He had his own closet with his clothes and belongings in it.
PROSECUTOR : May we approach?
At that point, the prosecutor told the court that she had made it clear to Amanda the day before not to discuss "certain things." The prosecutor said she thought a recess would be appropriate to admonish her witness one more time "so she doesn't say something she shouldn't." Swanigan's counsel said he thought that "was a good idea." The court took a five-minute recess, after which it informed the jury that there had been some problems hearing the witness, and her testimony would be started over. Swanigan's counsel then requested a bench conference, arguing that Amanda's mentioning Swanigan's incarceration was inadmissible and overly prejudicial. He requested a mistrial, which the court denied. The prosecutor then began Amanda's testimony from the beginning.
A mistrial is a drastic remedy that should be ordered only when there has been an error so prejudicial that justice cannot be served by continuing with the trial or when fundamental fairness of the trial itself has been manifestly affected. Britton v. State , 2014 Ark. 192, at 9, 433 S.W.3d 856, 862. A circuit court has wide discretion in granting or denying a mistrial motion, and absent an abuse of that discretion, the court's decision will not be disturbed on appeal. Id. at 10, 433 S.W.3d at 862. Further, a motion for mistrial must be made at the first opportunity. Ellis v. State , 366 Ark. 46, 49, 233 S.W.3d 606, 608 (2006). The reason for this is that a circuit court should be given an opportunity to correct any perceived error before prejudice occurs. Id.
The State contends that Swanigan's argument is not preserved for appeal because his motion for mistrial was untimely. We agree. In this case, Swanigan did not object when the allegedly offensive statement was made. In fact, the prosecutor asked four more questions before she herself stopped the testimony and asked for a recess to remind the witness what not to mention. Even then, defense counsel merely added that he thought it "was a good idea." It was not until after the five-minute recess and the court had informed the jury that it was going to have the State start over with Amanda's testimony that defense counsel requested a mistrial, which the court denied. The circuit court did not abuse its discretion.
F. Rebuttal Evidence
Finally, Swanigan contends that the circuit court abused its discretion in admitting rebuttal evidence by allowing the State to present evidence that did not refute the defense's evidence but that impeached a defense witness on a collateral matter the State itself elicited on cross-examination. He argues that the State failed to include the witness on its witness list, violating Rule 17.1 of the Arkansas Rules of Criminal Procedure ; the evidence did not refute any portion of Amy Bostick's testimony; and therefore, while perhaps admissible during the State's case-in-chief, it was not proper rebuttal evidence.
Rebuttal evidence is evidence that is offered in reply to new matters, even if it overlaps with the evidence presented in the State's case-in-chief, as long as the testimony is responsive to evidence presented by the defense. Kincannon v. State , 85 Ark. App. 297, 303, 151 S.W.3d 8, 12 (2004). The scope of a rebuttal witness's testimony is accorded wide latitude and will not be restricted merely because it could have been presented on direct examination. Id. It is within the circuit court's discretion whether to admit rebuttal testimony, and the appellate court will not reverse this determination absent an abuse of that discretion. Jackson v. State , 2015 Ark. App. 603, at 7, 474 S.W.3d 525, 530. The discretion of the circuit court in refusing the testimony of a rebuttal witness is narrow and is more readily abused by excluding the testimony than by admitting it. Id.
The defense called Amy Bostick to provide an alibi for Swanigan. She testified that Swanigan was taking a shower at her house at the time of the shooting. She remembered this because she was listening to a police scanner on her phone while he was showering and heard about the shooting. On cross-examination, she said that she had not had contact with Swanigan lately. She also denied having been on a three-party telephone call with Swanigan from jail, although she admitted that her boyfriend had called her and told her to say "hi" to Swanigan. She also testified that she had not talked about her testimony with Swanigan or received a letter from him about her testimony.
The State then attempted to call Scarlett Shurett as a rebuttal witness to introduce a letter written by Swanigan to Bostick instructing Bostick how to testify. Swanigan had given the letter to Shurett, who had turned it over to the prosecutor. Defense counsel argued that Bostick had never received the letter and thus it was not admissible to impeach her testimony. After a lengthy discussion, the court denied the State's request to introduce it. Defense counsel stated that Shurett could testify as long as her testimony was "appropriately limited to what [Bostick] apparently denied without putting an entire letter in that Amy Bostick didn't receive." The court agreed, finding that it was limited to impeachment to rebut Bostick's testimony that she "had never talked to Swanigan about how she was to testify."
The State then attempted to have Shurett introduce the recording of a three-way telephone call between Shurett, Swanigan, and Bostick on October 1, 2017. The court and counsel listened to the entire phone call, during which defense counsel argued that parts of the call were not relevant. The court and counsel agreed to the parts that could be played for the jury to impeach Bostick's testimony that she had not spoken with Swanigan about her testimony. The following part of the phone call was played for the jury:
SWANIGAN : But I'm just trying to get all my shit squared away. If, you know what I'm saying, maybe I'm gonna talk to him Monday, but you still straight and I'm saying that we need you get up there and say whatever?
BOSTICK : Yeah. Of course.
SWANIGAN : As far as who lived where, what was going on at the house, all that type of shit. You know what I'm saying?
BOSTICK : Yeah, Yeah, yeah, yeah, yeah. Just write me a letter.
SWANIGAN : That--
BOSTICK : Let me know.
The State introduced the recording, which was admitted without objection.
We reject Swanigan's arguments on appeal. He did not make these arguments to the circuit court. He neither mentioned Rule 17.1 nor argued that the State was attempting to impeach improperly. The court made no ruling on any such arguments. Moreover, Bostick testified that she had not spoken with Swanigan about her testimony. The phone call suggested that she had. We hold that the circuit court did not abuse its discretion in admitting the evidence.
Affirmed.
Abramson and Harrison, JJ., agree.
The video from Sonic of the Cadillac in the parking lot was played for the jury.
She did not identify the passenger when shown a photo lineup that included a photo of Benjamin Pitts several days later. | [
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RAYMOND R. ABRAMSON, Judge
Appellant Odis "Bo" Hamrick was found guilty by the Lonoke County Circuit Court of one count of theft of property in violation of Arkansas Code Annotated section 5-36-103(b)(2)(A) (Repl. 2013) at a bench trial on October 31, 2018. The circuit court sentenced Hamrick, as a habitual offender, to 180 months' imprisonment with 60 months' suspended imposition of sentence. Hamrick appeals his conviction, arguing that there is a lack of sufficient evidence to support it. We affirm but remand to correct an error in the sentencing order.
At trial, only two witnesses were called. Nathan Pruss, owner and operator of Bruno's Powersports in Cabot, Arkansas, testified on behalf of the State, and Hamrick testified in his own defense. Hamrick and Pruss entered into an agreement in October 2014 for Hamrick to sell several boats to Pruss. Hamrick was a boat broker of sorts. Hamrick acquired the boats' titles, and on October 23, 2014, Hamrick sent the titles to Pruss's wife, Sharon, via FedEx overnight delivery. Pruss paid Hamrick for all the boats and received a bill of sale documenting the transaction. Hamrick never delivered the last boat to Pruss. Months went by, and Pruss demanded repayment for the undelivered boat.
In order to resolve the dispute, Hamrick wrote Bruno's Powersports a check for $ 8,951.46 on December 2, 2014, with the "for" section of the check reading: "Payment on boat buy back." The check was signed by Hamrick and was written from his personal account. On December 8, 2014, Arvest Bank notified Pruss that Hamrick's account had been closed. Pruss never received any payment from Hamrick, and the boat was never delivered. Defense counsel timely moved to dismiss after the State rested and renewed the motion at the close of all the evidence, alleging that there was not sufficient evidence to establish what the subject matter of the theft was (i.e. the boat or the money). Specifically, Hamrick argued that there was insufficient evidence for a fact-finder to reach the conclusion that he exercised unauthorized control of another's property without resorting to speculation or conjecture. The court denied the motion each time.
In its ruling from the bench, the circuit court found the following:
All right. Mr. Pruss testified that he received the bill of sale on the boats--on all the boats he received a bill of sale. He paid for the boats. He stated he dealt with Mr. Odis Hamrick totally. He didn't receive one of his boats. There's a check here where there was money given back to Brutus [sic] Powersports and it didn't go through and it was payment on boat--what was it?--"payment on buyback." Payment on buyback of a boat. It didn't go through. He never did buy back the boat. He never received a boat that he paid for, so he was deprived of his property. I find him guilty.
On appeal, Hamrick argues that the State failed to prove that (1) he ever possessed the undelivered boat and that (2) Pruss paid him money for the undelivered boat. The State contends that it is irrelevant whether Hamrick ever possessed the boat, as the evidence at trial was sufficient to demonstrate that Hamrick exercised unauthorized control over $ 8,951.46 from Pruss.
A motion to dismiss at a bench trial, like a motion for directed verdict at a jury trial, is considered a challenge to the sufficiency of the evidence. Cora v. State , 2009 Ark. App. 431, at 3, 319 S.W.3d 281, 283. We will affirm a circuit court's denial of the motion if there is substantial evidence, either direct or circumstantial, to support the verdict. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. Id. Circumstantial evidence may constitute substantial evidence to support a conviction if it excludes every other reasonable hypothesis other than the guilt of the accused. Snow v. State , 2018 Ark. App. 612, at 5, 568 S.W.3d 290. The evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict is considered. Cora, supra. On appeal, we do not weigh the evidence presented at trial, as that is a matter for the fact-finder; nor do we assess the credibility of the witnesses. Ewell v. State , 375 Ark. 137, 138, 289 S.W.3d 101, 102 (2008).
The theft-of-property statute provides that "a person commits theft of property if he or she knowingly takes or exercises unauthorized control over or makes an authorized transfer of an interest in the property of another person with the purpose of depriving the owner of the property." See Ark. Code Ann. § 5-36-103(a)(1). Arkansas Code Annotated section 5-36-103(b)(2)(A), the specific statute with which Hamrick was charged in the instant case, makes the crime a Class C felony when "the value of the property is less than twenty-five thousand dollars ($ 25,000) but more than five thousand dollars."
Based on these statutes, and when viewing the evidence in the light most favorable to the verdict, we hold that substantial evidence supports Hamrick's theft-of-property conviction. Only Pruss and Hamrick testified at trial, and the trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. E.g. , Reynolds v. State , 2016 Ark. 214, at 3, 492 S.W.3d 491, 494. The circuit court was not required to believe the self-serving evidence from Hamrick--that he never possessed the undelivered boat--since he was the person most interested in the outcome of the proceeding. Rankin v. State , 338 Ark. 723, 1 S.W.3d 14 (1999). We will not reweigh the evidence on appeal. Drennan v. State , 2018 Ark. 328, at 6, 559 S.W.3d 262, 266. In fact, we will disregard testimony that the fact-finder has found credible only if it is so inherently improbable, physically impossible, or so clearly unbelievable that reasonable minds could not differ about it. Hillman v. State , 2019 Ark. App. 89, at 5-6, 569 S.W.3d 372, 375-76. Such is not the case here.
Under this standard of appellate review, we hold that there is substantial evidence to support Hamrick's conviction. Accordingly, we affirm.
Affirmed; remanded to correct sentencing order.
Gruber, C.J., and Harrison, J., agree.
The sentencing order reflects that Hamrick entered both a negotiated plea of guilty and also that he was found guilty by the court and sentenced by the court. However, Hamrick did not enter a guilty plea. On remand, we direct the court to correct this error. | [
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RITA W. GRUBER, Chief Judge
Appellant Tiffany Rena Campbell appeals her conviction for aggravated robbery. For reversal, she argues that the circuit court erred in denying her motion to dismiss the aggravated-robbery charge because the State failed to introduce substantial circumstantial evidence that Campbell shot Mark Caster in the head to facilitate the theft of his pickup truck. We disagree and affirm.
Following a bench trial on January 10-12, and February 9, 2018, the Pulaski County Circuit Court found Campbell guilty of aggravated robbery, criminal attempt to commit capital murder, robbery, residential burglary, and terroristic act. On March 27, 2018, Campbell was sentenced as a habitual offender to twenty years' imprisonment in the Arkansas Department of Correction for each offense, with the sentences to run concurrently. She was sentenced to an additional ten years' imprisonment pursuant to the firearm-enhancement statute for aggravated robbery, criminal attempt to commit capital murder, and terroristic act, with the enhancement to run consecutively to the twenty-year term. She filed a timely notice of appeal.
Although Campbell was convicted of crimes against two people, Campbell's argument on appeal only challenges the sufficiency of the evidence to support the conviction for the aggravated robbery of Mark Caster. Therefore, our recitation of the facts is limited to those related to this conviction and necessary to her argument on appeal.
Caster testified at trial that he agreed to meet Campbell at the Exxon gas station on 65th Street in Little Rock on January 19, 2017. He thought she wanted to meet to borrow money because he had loaned her money in the past. Caster, who was driving a 1991 Chevrolet GMC extended-cab pickup truck, arrived about fifteen minutes before Campbell. When she arrived, she told him by phone to follow her but did not say where she was going. She led Caster to Benny Craig Park, where she backed into a parking space. He backed in beside her small white car so that his passenger door was next to her driver's door. When he first arrived at the park around 7:00-7:30 in the evening, he did not see anyone else there.
Caster got out of his truck, went to the driver's door of her car, greeted her, and asked her what she needed. Campbell responded by asking him how her hair looked and commenting that he had a nice truck. She got out of her car and sat in the passenger seat of his truck. They had been talking for several minutes when Caster noticed a man carrying a backpack, who he thought was a "hobo" walking to go sleep in the woods. He started his engine and told Campbell he was not going to sit in the truck because he had heard about a killing at a park. He told Campbell to get in her car and go. Campbell initially stayed in Caster's truck, but then she got out of the truck and walked around to his driver's side door, at which time he got out of the truck because he was concerned about the man and did not want something to happen to her if he left. As he watched the man and Campbell out of the corner of his eye, he saw her right arm come up all of a sudden; he turned his head, heard a "boom," and fell to the ground. The boom he heard was a gunshot to the back of his head. The gunshot knocked him to the ground, but he jumped up and ran off. After running half a mile, he knocked on doors for help and called 911.
Caster testified that he was wearing a black baseball cap the night of the shooting. He identified photos of his truck and stated they accurately depicted what his truck looked like when it was found. He said that one photo showed that the radio was missing with the wires coming out where the radio plugged in, and another showed that the seat had been burned. He said that his truck had a box speaker, an amplifier, and a car radio at the time of the shooting, and he identified the items introduced at trial as having been in his truck and belonging to him.
Officer Nathan Dale Herpen arrived at Benny Craig Park about 7:49 p.m. to respond to a shooting that had just occurred. There were no vehicles in the parking lot or people in the park. He found a black baseball cap, bloody glasses, one live .45-caliber round, and a spent .45-caliber shell casing in the parking lot.
Detective Roy Williams was assigned to the case involving Caster. He developed Campbell as a suspect, met with Caster, and showed him a photo line-up. Caster identified Campbell as the person who shot him. While he was not present when Caster's truck was recovered, Williams testified that it was located on January 21, 2017.
Officer Ronnie Morgan, a patrolman with the Little Rock Police Department, investigated a call regarding a suspicious person and made contact with Campbell on January 23, 2017, in an alley. He testified that there was a white Honda in close proximity to her and that he noticed a speaker box and other stereo equipment around the vehicle near the trunk. In addition to the speaker box, Morgan stated that there was a car stereo and an amplifier. When presented with the car stereo and amplifier, Morgan stated they looked like the ones he found beside the white Honda. He identified the speaker box as being the one found near the vehicle, which was the same one identified by Caster as belonging to him.
At the close of the State's case, Campbell moved to dismiss the aggravated-robbery charge involving Caster, arguing in part that there was no evidence of Campbell's intent to steal the truck. Her motion was renewed at the close of all the evidence.
A motion to dismiss at a bench trial is identical to a motion for directed verdict at a jury trial in that it is a challenge to the sufficiency of the evidence. Ark. R. Crim. P. 33.1 (2018); Warren v. State , 2019 Ark. App. 33, at 2, 567 S.W.3d 105, 107. This court will affirm a circuit court's denial of the motion if there is substantial evidence, either direct or circumstantial, to support the verdict. Id. Substantial evidence is defined as evidence forceful enough to compel a conclusion one way or the other beyond suspicion and conjecture. Id. The evidence is viewed in the light most favorable to the verdict, and only evidence supporting the verdict is considered. Id.
Although circumstantial evidence may provide the basis to support a conviction, it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Morgan v. State , 2009 Ark. 257, at 6-7, 308 S.W.3d 147, 152. Whether the evidence excludes every other hypothesis is a decision left to the trier of fact. Id. Determinations of credibility and the weight of the evidence are matters for the circuit court in a bench trial and not for this court to decide on appeal. Oliver v. State , 2016 Ark. App. 332, at 4, 498 S.W.3d 320, 323. A judge at a bench trial is free to believe all or part of a witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id.
A person commits aggravated robbery if he or she commits robbery as defined by Ark. Code Ann. § 5-12-102, and the person (1) is armed with a deadly weapon; (2) represents by word or conduct that he or she is armed with a deadly weapon; or (3) inflicts or attempts to inflict death or serious physical injury upon another person. Ark. Code Ann. § 5-12-103(a) (Repl. 2013). "A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person." Ark. Code Ann. § 5-12-102 (Repl. 2013). Theft occurs if a person knowingly "(1) Takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another person with the purpose of depriving the owner of the property; or (2) Obtains the property of another person by deception or by threat with the purpose of depriving the owner of the property." Ark. Code Ann. § 5-36-103(a) (Repl. 2013).
Campbell, pointing to three deficiencies in the State's case, contends that the State failed to introduce substantial circumstantial evidence that when she shot Caster in the head, she did so to facilitate the theft of his truck.
Campbell first contends that before shooting Caster, she did not say anything to him to indicate that she intended to take unauthorized control over his truck. This argument is without merit. The intent to commit a robbery may be inferred from the facts and circumstances of the particular case. Jenkins v. State , 350 Ark. 219, 228, 85 S.W.3d 878, 883 (2002). An element may be inferred by circumstantial evidence when there is no other reasonable explanation for the accused's conduct. Harshaw v. State , 275 Ark. 481, 484, 631 S.W.2d 300, 302 (1982) (stating that no explanation was offered for shooting the victim and no other reasonable hypothesis existed except that it was connected to the robbery).
Campbell next argues that the State offered no testimony that would have proved that she drove Caster's truck away from the crime scene. To prove that she committed aggravated robbery, the State was required to prove that she shot Caster with the purpose of taking possession or obtaining unauthorized control of his truck. See Ark. Code Ann. §§ 5-12-103(a)(3) & 5-12-102(a). As the State correctly points out, this argument fails because the State must only prove that Campbell had the purpose to commit theft when she shot Caster, not that she actually committed the theft. See also Robinson v. State , 303 Ark. 351, 797 S.W.2d 425 (1990).
Finally, Campbell further asserts that the mere fact that she shot Caster in the head, without additional circumstantial evidence of her intent to take his truck, does not allow the fact-finder to reasonably infer that she had the specific intention to take his truck. Here, Campbell asked to meet Caster at a gas station and then lured him to a park. As he was keeping an eye on the man in the park, Campbell shot him. Law enforcement arrived at Benny Craig Park within an hour of the shooting, and Caster's truck was not there. Caster testified that on the day of the shooting, he had a box speaker, a CD player, and an amplifier in his truck. A few days later, Campbell was arrested while standing next to a white Honda with a speaker box and other audio equipment. At trial, Officer Morgan identified the speaker box as being the one found near Campbell and stated the stereo and amplifier looked similar to the ones found. Caster was able to identify all three items introduced as items that were in his truck at the time of the shooting.
A criminal defendant's intent or state of mind is seldom capable of proof by direct evidence. See Robinson v. State , 353 Ark. 372, 379, 108 S.W.3d 622, 625 (2003). Intent to commit a robbery may be inferred from the facts and circumstances of the particular case. Jenkins , 350 Ark. at 228, 85 S.W.3d at 883. The fact-finder may draw upon common knowledge and experience to infer the defendant's intent from the circumstances. Harmon v. State , 340 Ark. 18, 27, 8 S.W.3d 472, 477 (2000). An element may be inferred by circumstantial evidence when there is no other reasonable explanation for the accused's conduct. Harshaw, supra. Based on the circumstantial evidence introduced, the circuit court could reasonably infer that Campbell shot Caster with the intent to take his truck. Therefore, we affirm.
Affirmed.
Abramson and Harrison, JJ., agree.
Campbell signed a written waiver of her right to a jury trial on January 10, 2018. | [
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PHILLIP T. WHITEAKER, Judge
Andre Holloway appeals the Pulaski County Circuit Court's denial of his petition for adoption on the grounds that the consent of the appellee, William Carter, was required. On appeal, Andre argues that the court erred in denying his petition because William unjustifiably failed to communicate with the child, K.C., and failed to provide for the care and support of the child for a period of one year and that his consent to the adoption was thus not required. We agree that the circuit court's decision was clearly erroneous, and we reverse and remand.
We recite the following fact summary as pertinent to our analysis and conclusion. Andre is married to Barbara Holloway. Barbara is the mother of K.C., who was born on June 7, 2010. Although William was listed on the birth certificate as K.C.'s father, he and Barbara were never married. Barbara has maintained custody of K.C. since his birth. William has been largely uninvolved in K.C.'s life, and his lack of involvement was enhanced by his incarceration in 2014 following multiple criminal convictions. William remained incarcerated through the duration of the instant case.
Andre is a C-130 loadmaster in the United States Air Force. In 2018, he learned he would be deployed to Germany. When the Holloways asked William to sign a passport application for K.C. in early 2018, William refused. Shortly thereafter, Andre filed a petition to adopt K.C. alleging that William's consent to the adoption was not required under Arkansas Code Annotated section 9-9-207(a)(2) (Repl. 2015).
The circuit court held a hearing on Andre's petition and considered testimony from the Holloways, William, and Thomas Burns, general counsel for the Arkansas Department of Correction. The circuit court ultimately entered an order denying the petition, finding that Andre failed to meet his burden of proving that William's consent to the adoption was not required. Specifically, the court found that Andre had failed to present clear and convincing evidence that William failed to provide support for the child for twelve consecutive months. In addition, while the court found that the evidence showed that William had not communicated with the child during his incarceration, such failure to communicate was not without adequate excuse.
Andre timely appealed the circuit court's denial of his adoption petition. He argues that the circuit court erred in finding that William's consent was required under Arkansas Code Annotated section 9-9-207(a)(2). Under this statute, Andre had the burden of proving by clear and convincing evidence that William's consent to an adoption was not required because K.C. was in the custody of another--Barbara--and that William for a period of at least one year failed significantly without justifiable cause (i) to communicate with K.C. or (ii) to provide for the care and support for K.C. as required by law or judicial decree. Andre, who wishes to adopt K.C. without William's consent, must prove that William's consent is unnecessary. In re Adoption of Lybrand , 329 Ark. 163, 169, 946 S.W.2d 946, 949 (1997). There is a heavy burden placed on the party seeking to adopt a child without the consent of a natural parent to prove the failure to communicate or the failure to support by clear and convincing evidence. Racine v. Nelson , 2011 Ark. 50, 378 S.W.3d 93.
We review adoption proceedings de novo. In re Adoption of S.C.D. , 358 Ark. 51, 186 S.W.3d 225 (2004) ; A.R. v. Brown , 103 Ark. App. 1, 285 S.W.3d 716 (2008). We give due regard to the opportunity and superior position of the trial judge to determine the credibility of witnesses, and we have stated that the personal observations of the trial judge are entitled to even more weight in cases involving the welfare of a small child. Fox v. Nagle , 2011 Ark. App. 178, 381 S.W.3d 900. We will not reverse a circuit court's finding regarding whether consent is unnecessary due to failure to support or communicate with the child unless it is clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id.
In this case, we are left with a definite and firm conviction that the circuit court made a mistake in its findings regarding William's failure to communicate with K.C. A failure to communicate without justifiable cause is one that is voluntary, willful, arbitrary, and without adequate excuse. In re Adoption of Lybrand , 329 Ark. at 169-70, 946 S.W.2d at 950. It is not required that a parent fail totally in these obligations in order to fail significantly within the meaning of the statutes. Id. at 170, 946 S.W.2d at 950.
Our de novo review reveals the following undisputed evidence presented in this case. William has been incarcerated in the ADC since 2014. During that time, William did not send K.C. cards or gifts for birthdays or Christmases. William acknowledged that he had no proof that he communicated with K.C. during 2014 or 2016. Thomas Burns from the ADC verified that between 2015 and 2018, William made one phone call to the telephone number associated with the Holloways. Other testimony, however, revealed that during this solitary phone call, William spoke only with Barbara and not with K.C. In fact, William's only communications were with the Holloways-never with K.C. himself. Concerning physical contact or visits, William asserted that K.C. had visited him in the penitentiary twice in 2015. Outside of those limited visits, however, William has not seen K.C. since 2016. This evidence is clear and convincing that William failed to communicate with K.C. for a period of one year.
Here, the circuit court found that William's "failure to communicate was not without adequate excuse." The court acknowledged that William did not write to, or otherwise communicate with, K.C. during his incarceration; it nonetheless found that his failure to communicate was not without adequate excuse. The circuit court did not expressly spell out its reasoning behind this conclusion; however, we glean from its order that it believed the failure to communicate was based on tensions that arose between William and the Holloways after William had refused to sign K.C.'s passport application. The court wrote as follows:
In 2018, [Andre] wrote a letter to Mr. Carter which indicated that [Andre] would help facilitate visitation between the minor child and Mr. Carter.
[Andre] is in the United States Air Force and will be stationed in Germany for three years requiring a passport for the minor child. At the hearing, [Andre] testified that he did not continue to facilitate visitation between Mr. Carter and the minor child when Mr. Carter indicated that he would not sign the passport application until after he received visitation with the minor child.
The court therefore found that William's failure to communicate was not without adequate excuse, and it thus could not find by clear and convincing evidence that William had failed without justifiable cause to communicate with the minor child. For the following reasons, we disagree.
First, assuming the reason enunciated by the circuit court rendered William's failure to communicate justifiable, this "justifiable" reason did not arise until February 14, 2018, the date on which Andre wrote to William asking him to sign K.C.'s passport application. Andre's petition for adoption was filed on March 27, 2018. Thus, William's "justifiable cause" existed for only a month and a half, yet his failure to communicate spanned several years from 2014 through 2018. We find it clearly erroneous to conclude that an isolated incident that occurred in 2018 can justify a failure to communicate in 2014, 2015, 2016, and 2017.
Second, the circuit court's finding is not supported by cases from either the supreme court or our court. In Rodgers v. Rodgers , 2017 Ark. 182, 519 S.W.3d 324, the supreme court found that the mother had failed without justifiable cause to communicate with her child for more than a year, even though there was a court order preventing her from contacting the child. The mother argued that she was prohibited by court order from communicating. The supreme court disagreed, noting that the statute provides that it is a "parent's failure to 'communicate with the child,' not a failure to have visitation with the child that allows adoption to proceed without consent." Id. at 5, 519 S.W.3d at 328. An inability to have visits did not excuse the mother because she "could have made telephone calls to the children, sent birthday or Christmas cards, letters, or emails," id. , but she did not do any of those things, and the court found her failure to communicate was unjustifiable.
Likewise, in In re Adoption of J.N. , 2018 Ark. App. 467, 560 S.W.3d 806, this court held that even though the mother may not have gone a full twelve months without seeing her child, the circuit court did not err in finding that three or four visits between November 2013 and August 2016, and perhaps a few phone calls, was still a significant failure to communicate. Id. at 9-10, 560 S.W.3d at 813. The similarities between J.N. and this case are important. Admittedly, William may have seen K.C. occasionally at visitations at the penitentiary, but these visits were sporadic and were all initiated by either Barbara or by William's wife; none were initiated by William himself.
We conclude that William's lack of initiative and his lack of communication were significant failures. "Failed significantly" does not mean "failed totally." Id. at 9, 560 S.W.3d 806, 813 (citing Racine, supra ). Thus, the circuit court here clearly erred in finding that Andre failed to prove by clear and convincing evidence that William's consent to the adoption was required. We therefore reverse the circuit court's finding that William's consent was required, and we remand for the court to determine whether the adoption is in K.C.'s best interest.
Reversed and remanded.
Klappenbach and Vaught, JJ., agree.
Andre and Barbara began dating in 2016 and married in 2017. At the time of Andre and Barbara's marriage, K.C. was approximately seven years old.
Because we reverse and remand on the issue of failure to communicate, we need not address Andre's arguments regarding William's failure to support. See Cowsert v. Bargar , 2014 Ark. App. 299, at 2, 2014 WL 2013405 ("[O]nly one significant failure is required to render a parent's consent to adoption unnecessary.").
The one-year requirement applies to any one-year period between the date of the child's birth and the date the petition for adoption was filed and is not limited to the year immediately preceding the filing of the adoption petition. Ray v. Sellers , 82 Ark. App. 530, 534, 120 S.W.3d 134, 137 (2003).
The circuit court entered an order that did not clearly articulate whether William failed to communicate. We assume that the court did tacitly reach this conclusion because it ultimately found that William's "failure to communicate was not without adequate excuse."
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KENNETH S. HIXSON, Judge
Appellant Leslie McDaniel appeals from the termination of her parental rights to her son, L.G., who was born on May 23, 2018. Pursuant to Linker-Flores v. Arkansas Department of Human Services , 359 Ark. 131, 194 S.W.3d 739 (2004), and Arkansas Supreme Court Rule 6-9(i), Leslie's counsel has filed a no-merit brief and motion to withdraw, asserting that there are no issues of arguable merit to support an appeal and that she should be relieved as counsel. A copy of Leslie's counsel's brief and motion was mailed to Leslie, and after being informed of her right to file pro se points, Leslie declined to file any points. We affirm and grant appellant's counsel's motion to withdraw.
We review termination-of-parental-rights cases de novo. Dinkins v. Ark. Dep't of Human Servs. , 344 Ark. 207, 40 S.W.3d 286 (2001). At least one statutory ground must exist, in addition to a finding that it is in the child's best interest to terminate parental rights; these must be proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2017); Mitchell v. Ark. Dep't of Human Servs. , 2013 Ark. App. 715, 430 S.W.3d 851. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Gray v. Ark. Dep't of Human Servs. , 2013 Ark. App. 24, 2013 WL 245718. The appellate inquiry is whether the trial court's finding that the disputed fact was proved by clear and convincing evidence is clearly erroneous. J.T. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Yarborough v. Ark. Dep't of Human Servs. , 96 Ark. App. 247, 240 S.W.3d 626 (2006).
When L.G. was born, his meconium tested positive for methamphetamine. Leslie admitted using methamphetamine earlier that week. An Arkansas Department of Human Services (DHS) family-service worker informed Leslie that a home study would be necessary to ensure the baby's safety before the baby could be placed in her custody. Leslie gave the family-service worker an address and phone number and left the hospital. DHS workers repeatedly attempted to make contact with Leslie at her home, but they could never get anyone to answer the door. Phone calls to Leslie went unanswered. L.G. was scheduled to be discharged from the hospital eight days after his birth, on May 31, 2018. On that day, a DHS worker went to Leslie's house and saw three cars parked in the driveway. A pit bull was guarding the porch and barking viciously at the worker. An unidentified person quickly closed the front door. The DHS worker attempted to reach Leslie by phone but got no answer. DHS took an emergency hold of L.G. upon his release from the hospital and notified Leslie via text message.
On June 4, 2018, DHS filed a motion for emergency custody, and on the same day the trial court entered an ex parte order for emergency custody. A probable-cause order was entered on June 11, 2018. In the probable-cause order, Leslie was allowed reasonable visitation with L.G. contingent upon her submitting to a drug screen and not appearing under the influence of drugs or alcohol. Leslie was ordered to submit to random drug screens, complete parenting classes, maintain stable housing and employment, submit to a psychological evaluation, and submit to a drug-and-alcohol assessment and complete all recommendations.
The trial court entered an adjudication order on July 13, 2018. The trial court found L.G. dependent-neglected because he was at serious risk of harm due to inadequate supervision and his mother's drug use. The goal of the case was reunification.
A review hearing, at which Leslie did not appear, was held on September 17, 2018. At that hearing, the trial court considered a written motion by DHS to terminate reunification services. On September 21, 2018, the trial court entered a review order and an order terminating reunification services. In these orders, the trial court suspended Leslie's visitation and relieved DHS from providing services to Leslie. The trial court found by clear and convincing evidence that it was in L.G.'s best interest to terminate reunification services because Leslie had abandoned the child and there was little likelihood that services to Leslie would result in successful reunification.
In a permanency-planning order entered on October 15, 2018, the trial court found that the goal of the case shall be termination of parental rights and adoption. DHS filed a petition to terminate Leslie's parental rights on November 5, 2018. The termination hearing was held on November 26, 2018.
Leslie did not appear at the termination hearing. The only witness to testify at the hearing was DHS supervisor Victoria Smith.
Ms. Smith testified that Leslie had not had stable housing throughout the case and that DHS did not know where she was living. To Ms. Smith's knowledge, Leslie was not employed. Ms. Smith indicated that despite referrals by DHS, Leslie had not complied with any of the court-ordered services. Leslie had failed to submit to a drug-and-alcohol assessment, attend parenting classes, or submit to a psychological evaluation. Ms. Smith stated that Leslie had not visited L.G. at all since L.G. came into DHS custody. Ms. Smith stated that Leslie had attempted to visit the child only three times but that visitation was denied each time because she either tested positive for methamphetamine or refused to take a drug screen. Ms. Smith also stated that Leslie previously had her parental rights terminated as to a sibling of L.G. due to Leslie's failure to complete services in that case.
Ms. Smith gave the opinion that Leslie had abandoned her child, and she recommended termination of Leslie's parental rights. She stated that if parental rights were terminated, the plan was for L.G. to be adopted. Ms. Smith stated that L.G.'s foster parents were interested in adopting him and that it was very likely that L.G. would be adopted.
At the termination hearing DHS introduced, without objection, a certified copy of an order terminating Leslie's parental rights to her older son, K.M., who was born on October 6, 2016. In that termination order, which was entered on October 6, 2017, the trial court found that Leslie had abandoned K.M., having visited him only twice since coming into foster care and failing to maintain contact with DHS or comply with any of the court's orders.
On November 29, 2018, the trial court entered an order terminating Leslie's parental rights to L.G. The trial court found by clear and convincing evidence that termination of parental rights was in the child's best interest, and the court specifically considered the likelihood of adoption, as well as the potential harm of returning the child to Leslie's custody as required by Arkansas Code Annotated section 9-27-341(b)(3)(A). The trial court also found clear and convincing evidence of three statutory grounds under subsection (b)(3)(B). Pursuant to subsection (b)(3)(B)(iv), the trial court found that Leslie had abandoned the juvenile. Under subsection (b)(3)(B)(ix)(a)(3) , the trial court found that Leslie had subjected L.G. to aggravated circumstances, meaning that there was little likelihood that services to the family would result in successful reunification. Finally, under subsection (b)(3)(B)(ix)(a)(4) , the trial court found that Leslie had her parental rights involuntarily terminated as to a sibling of L.G.
In the no-merit brief, appellant's counsel accurately asserts that the only adverse ruling below was the termination itself. Appellant's counsel further asserts, correctly, that there could be no meritorious challenge to the sufficiency of the evidence to support termination of Leslie's parental rights.
Although the trial court found three statutory grounds for termination, only one ground is necessary to support the termination. See Brown v. Ark. Dep't of Human Servs. , 2017 Ark. App. 303, 521 S.W.3d 183. In the termination order, the trial court found under Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(a)(4) that Leslie had her parental rights involuntarily terminated as to a sibling of L.G. Because this ground was conclusively proved at the termination hearing, there can be no meritorious challenge to the statutory-ground element of the termination statute.
We also agree with appellant's counsel's assertion that there can be no meritorious challenge to the trial court's finding that termination of parental rights was in L.G.'s best interest. Leslie had not visited L.G. in the six-month period since his removal from her custody, and she failed to appear at the termination hearing. The testimony at the hearing showed that Leslie had no stable housing or employment and that she had not complied with any of the case plan. Leslie tested positive for methamphetamine just three months before the termination hearing and had otherwise refused drug screens or failed to make herself available for them. This evidence supports the trial court's finding that L.G. would be at risk of harm if returned to Leslie's custody. There was also testimony that the likelihood of adoption was very high and that L.G.'s foster parents were interested in adopting him. Based on the evidence presented, the trial court's finding that termination of Leslie's parental rights was in L.G.'s best interest was not clearly erroneous.
After examining the record and appellant's counsel's brief, we have determined that counsel has complied with our no-merit rules and that this appeal is wholly without merit. Accordingly, we affirm the order terminating appellant's parental rights and grant her counsel's motion to withdraw from representation.
Affirmed; motion to withdraw granted.
Gladwin and Switzer, JJ., agree.
The child's putative father died during the dependency-neglect proceedings. | [
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c. Allow Plaintiffs or others who rely on this access to perform maintenance and repair without damaging AGFC lands;
d. Declare AGFC's actions in this case of blocking access and making unreasonable demands to Plaintiffs as violating its authority under Amendment 35;
e. Declare the Land Use Permit Agreement unnecessary and outside the scope of AGFC's powers in Amendment 35 because it contains provisions that are unnecessary, unconscionable and against public policy;
f. Find AGFC's actions constitute a temporary or complete taking without due ... process and without compensation; and
g. For all other relief this Court deems necessary and proper.
The Hesleps also filed a motion for immediate temporary injunction and brief in support.
In response, AGFC filed a motion to dismiss as well as a memorandum in opposition to the Hesleps' request for preliminary injunction. AGFC advanced multiple bases for dismissal, including that AGFC has sovereign immunity under article 5, section 20 of the Arkansas Constitution. The Hesleps filed their brief in opposition to the motions to dismiss, and on December 19, 2017, the circuit court held a hearing on the pending motions. After hearing the arguments of counsel, the circuit court ruled from the bench and subsequently entered its written order granting dismissal of Director Crow individually, denying dismissal of AGFC and Director Crow in his official capacity, and granting the Hesleps a temporary injunction. The order stated that the circuit court, "after considering the pleadings and motions and hearing arguments of counsel but taking no testimony nor admitting evidence, finds" that AGFC is not entitled to sovereign immunity and that the complaint states sufficient facts upon which relief can be granted. Additionally, the circuit court ordered AGFC to "immediately provide a key to the locked gate" on the WMA road and "allow [the Hesleps] vehicular access using the road (including the recently-established alternate route as depicted in Exhibit 5 to [their] Complaint) for the purpose of accessing their property located north of the WMA." AGFC's timely interlocutory appeal followed.
I. Motion to Dismiss-Sovereign Immunity
Under its first point on appeal, AGFC argues that the sovereign immunity of the State and its agencies under article 5, section 20 of the Arkansas Constitution bars the Hesleps' suit. The Arkansas Constitution provides that "[t]he State of Arkansas shall never be made defendant in any of her courts." Ark. Const. art. 5, § 20. This court has extended the doctrine of sovereign immunity to include state agencies such as the Arkansas Game & Fish Commission. See Ark. Game & Fish Comm'n v. Eddings , 2011 Ark. 47, at 4, 378 S.W.3d 694, 697. Generally, a suit against the State is barred by the sovereign-immunity doctrine if a judgment for the plaintiff will operate to control the action of the State or subject the State to liability. Ark. State Med. Bd. v. Byers , 2017 Ark. 213, at 3, 521 S.W.3d 459, 462. There are, however, exceptions to that rule. Id. This court has held that a suit against the agency or officer is not prohibited if the state agency is acting illegally and that a state agency or officer may be enjoined from acting arbitrarily, capriciously, in bad faith, or in a wantonly injurious manner. See id.
Regarding our standard of review, this court has stated that we apply the abuse-of-discretion standard of review. Ark. Lottery Comm'n v. Alpha Mktg. , 2013 Ark. 232, at 6, 428 S.W.3d 415, 419. On reviewing the denial of the motion to dismiss on sovereign-immunity grounds, we look to the pleadings, treating the facts alleged in the complaint as true and viewing them in the light most favorable to the party who filed the complaint. Id. ; Williams v. McCoy , 2018 Ark. 17, at 3, 535 S.W.3d 266, 268. For purposes of a motion to dismiss, we treat only the facts alleged in a complaint as true, but not a party's theories, speculation, or statutory interpretation. Fitzgiven v. Dorey , 2013 Ark. 346, at 14, 429 S.W.3d 234, 242.
Turning now to the arguments on appeal, AGFC is correct that sovereign immunity would bar any claim for monetary damages. See Travelers Cas. & Sur. Co. of Am. v. Ark. State Highway Comm'n , 353 Ark. 721, 727, 120 S.W.3d 50, 53 (2003) (holding that sovereign immunity bars an action which will "tap into the State's treasury" for payment of damages); Ark. State Police Ret. Sys. v. Sligh , 2017 Ark. 109, 516 S.W.3d 241. AGFC points to Count IV of the complaint, which alleges that AGFC had effected a taking without just compensation in violation of the Fifth Amendment to the United States Constitution and article 2, section 22 of the Arkansas Constitution. While Count IV of the complaint does state that "AGFC should compensate Plaintiffs accordingly," the prayer for relief does not include a request for monetary damages, and the Hesleps state in their brief that they are not seeking monetary damages. There is simply no support for the argument that AGFC will suffer monetary damages where none have been requested. Accordingly, there is no basis for the State's assertion of sovereign immunity based on the fact that a plaintiff cannot seek monetary damages from the State.
Next, AGFC argues that sovereign immunity bars the Hesleps' claims for injunctive relief because they attempt to control its actions by restricting its ability to manage this WMA and others. AGFC attempts to make a distinction between issuing an injunction to stop a pending action of an agency that is ultra vires and issuing an injunction to correct an action that has already occurred. It cites Arkansas State Game & Fish Comm'n v. Eubank , 256 Ark. 930, 931, 512 S.W.2d 540, 541, (1974), in which this court stated that "[a] state agency may be enjoined in a suit in equity if it can be shown the pending action of the agency is ultra vires or without the authority of the agency." Eubank concerned a proposed action by AGFC, and we do not read the case to stand for the proposition that only pending ultra vires actions may be the subject of injunctive relief against the State. The Hesleps respond that their request for injunctive relief does not seek to control the legal actions of AGFC. They do not seek to control the manner in which the road is used or maintained and, in fact, expressly recognize AGFC's regulatory authority over its property. Rather, they seek to enjoin only the (allegedly) illegal actions of AGFC in blocking their access to their property and accept reasonable restrictions on their use of the road. This is a continuing deprivation, not a one-time taking or one-time action by the State that was addressed in Eubank. On this record, we reject AGFC's argument that sovereign immunity bars the Hesleps' claims for injunctive relief because they attempt to control its actions.
AGFC next argues that sovereign immunity bars the Hesleps' claims for declaratory relief. AGFC argues that declaring an easement over the WMA road and enjoining AGFC from restricting its use would operate to control the actions of the State by divesting AGFC of its fundamental property rights. As noted above, this argument is undercut by the allegations in the complaint. The Hesleps assert that they already have a legal right of access, and a declaration that AGFC exceeded its constitutional authority is not barred by sovereign immunity.
Having determined that the Hesleps' claims for injunctive and declaratory relief are not necessarily barred by the doctrine of sovereign immunity, the only issue remaining is whether sufficient facts were pled to support an exception to sovereign immunity in this case. As noted above, this court has held that a suit is not prohibited by sovereign immunity if the state agency is acting illegally or in an ultra vires manner, and that a state agency or officer may be enjoined from acting arbitrarily, capriciously, in bad faith, or in a wantonly injurious manner. Amendment 35 to the Arkansas Constitution vests in AGFC the "control, management, restoration, conservation and regulation" of the wildlife resources of the State, including WMAs and other AGFC properties used for those purposes. See Ark. Const. amend. 35, § 1. In addressing the authority of AGFC under amendment 35, this court has written that "the Commission cannot use its authority to deny the constitutional rights of others." Ark. Game & Fish Comm'n v. Lindsey , 299 Ark. 249, 251, 771 S.W.2d 769, 770 (1989). Even accepting as true AGFC's argument that the Hesleps failed to plead sufficient facts to support a finding that the road in question is a county road, we cannot say the same for the alternative claim regarding a prescriptive easement. See Owners Ass'n of Foxcroft Woods, Inc. v. Foxglen Assocs. , 346 Ark. 354, 363, 57 S.W.3d 187, 193 (2001) (stating that it is generally required that one asserting an easement by prescription show by a preponderance of the evidence that one's use has been adverse to the true owner and under a claim of right for the statutory period of seven years).
In Arkansas Game & Fish Commission v. Eddings , 2011 Ark. 47, 378 S.W.3d 694, this court held that AGFC was entitled to sovereign immunity from a property owner's suit to establish a county road across land owned by AGFC. AGFC contends that Eddings is similar enough to the present case that it should control. However, in Eddings , the issue on appeal was whether the State's sovereign immunity must yield to the constitutional authority of county courts over roads. Unlike in the present case, the plaintiff in Eddings had not pled as part of his petition to establish a road that AGFC was taking his property by withholding access in violation of the constitution. Here, the Hesleps did plead illegality and they do not seek to establish a new easement; rather, they seek to stop the illegal blocking of a long-established easement.
The essence of the Hesleps' claims is that AGFC illegally blocked their access to the road that is their only access to their property. If taken as true, as we must at the motion-to-dismiss stage, the complaint alleges that AGFC acted illegally or in an ultra vires manner and is therefore not subject to dismissal under the doctrine of sovereign immunity. Thus, we affirm on this point.
II. Temporary Injunction
AGFC also argues that the circuit court erred when it granted the Hesleps a temporary injunction and required AGFC to provide them with a key to the locked gate across the road on AGFC property pending this interlocutory appeal. In determining whether to issue a preliminary injunction pursuant to Ark. R. Civ. P. 65, the circuit court must consider two things: (1) whether irreparable harm will result in the absence of an injunction or restraining order and (2) whether the moving party has demonstrated a likelihood of success on the merits. Baptist Health v. Murphy , 365 Ark. 115, 226 S.W.3d 800 (2006). This court reviews the grant of a preliminary injunction under an abuse-of-discretion standard. Id. When an appeal reaches a court via an order granting a preliminary injunction, the appellate court will not delve into the merits of the case further than is necessary to determine whether the circuit court exceeded its discretion in granting the injunction. Id. The sole question before the appellate court is whether the circuit court "departed from the rules and principles of equity in making the order," and not whether the appellate court would have made the order. Id. at 121-22, 226 S.W.3d at 806-07.
After "taking no testimony nor admitting evidence," the circuit court entered the following order granting the temporary injunction:
5. Defendant AGFC is ordered to immediately provide a key to the locked gate installed across the road located on the Commission-owned Henry Gray Hurricane Lake Wildlife Management Area and to allow Plaintiffs vehicular access using the road (including the recently-established alternate route as depicted in Exhibit 5 to Plaintiffs' Complaint) for the purpose of accessing their property located north of the WMA. This injunction shall remain in effect during the pendency of AGFC's interlocutory appeal and until further order of the Court.
6. No party is required to post bond.
AGFC argues that this court should dissolve the temporary injunction for the following three reasons: (1) the order includes no reasons and no findings as to the basis for the injunction as required by Rule 65(d) ; (2) without any explanation for the departure from Rule 65(c), the circuit court failed to require that the Hesleps give security for the injunction; and (3) principles of equity heavily weighed against the court's issuing an injunction. In response, the Hesleps argue that AGFC waived their arguments by stating at the hearing that they believed no hearing should take place on the motion for preliminary injunction until the sovereign-immunity appeal was complete. They also argue that this was "a band-aid solution" until a full hearing could be held, and that the injunction merely puts the parties where they were before the gate was installed.
We hold that the injunction must be dissolved for failure to comply with Rule 65. Rule 65(d) governs the contents and scope of every injunction and provides in pertinent part that "[e]very order granting an injunction ... must: (A) state the reasons why it was issued." The order granting an injunction in this case is deficient for failure to state the reasons why it was issued. In addition, the circuit court failed to require that the Hesleps give security for the injunction as required by Rule 65(c). In the absence of an evidentiary hearing and specific findings by the circuit court, we cannot overlook its failure to comply with the requirements of Rule 65. We reverse the grant of the temporary injunction and remand for further proceedings consistent with this opinion.
Affirmed in part; reversed in part and remanded.
Special Justice Doug Schrantz joins in this opinion.
Baker, J., dissents.
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BART F. VIRDEN, Judge
Jeff Clark appeals the Workers' Compensation Commission's ("the Commission") decision finding that he failed to prove that he sustained a specific-incident compensable injury while working for Williamson G.C., Inc. ("Williamson"). On appeal, Clark argues that the Commission's finding is not supported by substantial evidence. We affirm.
On March 8, 2016, Clark was working as a welder for Williamson when he claimed he injured his right elbow while on the job. Clark filed a compensation claim. After initially accepting liability, Williamson controverted the claim in its entirety and denied that Clark was entitled to further medical benefits and temporary total-disability benefits. The case proceeded to a hearing before an administrative law judge ("ALJ").
At the hearing, Clark testified that he was working at Williamson the morning of March 8, 2016, when he was injured. Clark explained that he reached for his "heli-arc rig" after he had finished welding, and when he pulled it toward him, he felt a "pop" at the top of his right elbow. Clark testified that after lunch he reported the incident to the safety manager who told him to "wait a couple of days and see how it was and let him know." Clark testified that later that day he told the safety manager that his elbow still hurt, but his employer refused to send him to a doctor. The next day, Clark went to see his primary-care physician, Dr. Robert Woodrome. Clark testified that he told Dr. Woodrome about the injury and that he also told the doctor about his arthritis and the chronic pain in his lower back and ankle. Dr. Woodrome did not prescribe any treatment for Clark's elbow, but Clark testified that Dr. Woodrome told him he needed to apply for workers' compensation. Clark testified that he continued to work despite the pain, which was bad enough that it kept him from sleeping. Dr. Woodrome's progress notes showed that Clark's chief complaints were hypertension, chronic pain, enlarged prostate, and arthritis. There was no notation in Dr. Woodrome's notes that Clark was there to discuss or receive treatment related to an injury to his elbow, and under the "musculoskeletal" heading, Dr. Woodrome noted Clark's back pain and arthritis-related pain and that Clark denied carpal tunnel syndrome, joint stiffness, leg cramps, and muscle aches and spasms. Dr. Woodrome assessed that Clark suffered from hypertension, chronic fatigue, osteoarthritis, and an enlarged prostate.
Clark recounted that on April 11, 2016, he was examined by orthopedic physician Dr. Daniel Fuentes and that he told Dr. Fuentes about the injury to his elbow. Clark stated that Dr. Fuentes did not prescribe any treatment or perform any treatment in the office. The physician's notes show that Clark was there for a follow-up visit regarding right-arm pain that he claimed resulted from a work-related injury. The notes show that Clark had pain and "fullness" near the lateral epicondyle, and Dr. Fuentes recorded that his impression of the complaint was "acute on chronic right elbow pain with history of lateral epicondylitis."
Clark testified that in May he was examined by Dr. Pavan Pinnamaneni, a family doctor he had seen before, who gave him medication for the pain in his arm. Dr. Pinnamaneni's notes and the medical records show that Clark's arm pain had begun five years earlier, that he had been diagnosed with lateral epicondylitis, and that treatment for his condition had begun in 2014. Dr. Pinnamaneni observed that Clark's right lateral epicondyle was tender. Clark saw Dr. Pinnamaneni again two weeks later, and the physician's notes showed that the onset of Clark's right-elbow pain had been five years earlier and that Clark had been treated with heat therapy and pain medication.
On June 9, 2016, Clark was examined by Dr. Bill Mathias, who noted that Clark reported he suffered an injury to his right elbow on March 8, 2016, and that though there was no swelling, erythema, or warmth in the area, Clark claimed to have increased pain. Dr. Mathias ordered an MRI and assessed the results as follows:
Slightly increased signal intensity is present within the common extensor tendon adjacent to its lateral humeral epicondyle insertion. No tendon retraction is evident. Increased signal intensity is present within the common flexor tendon adjacent to its medial humeral epicondyle insertion. No tendon retraction is evident.
1. Work-related injury 3-8-16.
2. Right distal bicep tendon strain.
3. Probable non-displaced avulsion injury of the right distal biceps tendon insertion in to the radial tuberosity.
Clark testified that Dr. Mathias set certain physical limitations: he was not allowed to use his right arm, pick up more than twenty pounds, climb, or use his "upper extremities." Clark testified that he had not worked since July when Dr. Mathias set the limitations listed above. Clark stated that he had received some temporary disability benefits until May 8, 2016.
Following the hearing, the ALJ entered an order finding that though there were objective medical findings to support Clark's right-arm condition, he failed to prove a causal connection between any incident on March 8, 2016, and a compensable injury. The ALJ cited Clark's testimony that he had a history of elbow pain going back to 2009, and he experienced a pattern of elbow issues that would "flare up, get better, and then flare up again." The ALJ noted that Clark's medical records showed that in 2014, Dr. Pinnamaneni diagnosed Clark with lateral epicondylitis in his right arm and began treatment. Dr. Pinnamaneni's notes from May 2016 show that Clark was again being treated for elbow pain and that he suffered tenderness in his right lateral epicondyle. The ALJ found that in July 2016 Clark saw Dr. Mathias who recommended x-rays and an MRI and placed work restrictions on Clark. The ALJ acknowledged Dr. Mathias's statement that, after reviewing the MRI, it was his opinion that Clark suffered "right tendon strain and an avulsion injury" and that he attributed this to a work-related injury on March 8, 2016; however, the ALJ also noted that Clark had suffered right-forearm and elbow pain since 2014. The ALJ found that
[t]here are objective medical findings to support the claimant's right arm condition. However, those medical findings have no causal connection to the incident the claimant testified to as having occurred on March 8, 2016.... [T]he claimant stated that he had pain and swelling issues related to his right elbow/forearm prior to March 8, 2016. Additionally, the medical records reflect that the claimant was being treated for elbow issues almost two years prior to March 8, 2016.
Clark appealed the ALJ's decision to the Commission. The Commission affirmed and adopted the ALJ's opinion. Clark then appealed the Commission's decision to this court. On appeal, Clark argues that the Commission's finding that he failed to establish that he had sustained a compensable injury as a result of a specific incident is not supported by substantial evidence.
When an appeal is taken from the denial by the Commission of a claim for benefits, the substantial-evidence standard of review requires that we affirm if the Commission's opinion contains a substantial basis for the denial of relief. Halliday v. N. Ark. Reg'l Med. Ctr. , 2016 Ark. App. 392, at 5, 500 S.W.3d 198, 201. We view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Commission's findings. Id. Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The question is not whether the evidence would have supported findings contrary to the ones made by the Commission; there may be substantial evidence to support the Commission's decision even though we might have reached a different conclusion if we had been sitting as the trier of fact or hearing the case de novo. Id. The determination of the credibility of witnesses and the weight of evidence is within the sole province of the Commission. Id. The Commission is not required to believe self-serving testimony that a claimant sustained an injury. Bittle v. Wal-Mart Assocs., Inc. , 2017 Ark. App. 639, at 9, 537 S.W.3d 753, 759.
To prove the occurrence of a specific-incident compensable injury, the claimant must establish that (1) an injury occurred arising out of and in the scope of employment; (2) the injury caused internal or external harm to the body that required medical services or resulted in disability or death; (3) the injury is established by medical evidence supported by objective findings as defined in Ark. Code Ann. § 11-9-102(16) (Repl. 2012), which are findings that cannot come under the voluntary control of the patient; and (4) the injury was caused by a specific incident and is identifiable by time and place of occurrence. Ark. Code Ann. § 11-9-102(4)(A)(i). The claimant has the burden of proving these elements by a preponderance of the evidence. Ark. Code Ann. § 11-9-102(4). The requirement that a compensable injury be established by medical evidence supported by objective medical findings applies only to the existence and extent of the injury. Cross v. Magnolia Hosp. Reciprocal Grp. of Am. , 82 Ark. App. 406, 109 S.W.3d 145 (2003).
We hold that the Commission's finding that Clark failed to establish a specific-incident compensable injury is supported by substantial evidence. Dr. Woodrome's March 9, 2016 notes do not show that Clark mentioned pain in his arm or an injury at work, nor did Dr. Woodrome perform or prescribe any treatment for an injury to Clark's right arm. Dr. Fuentes and Dr. Pinnamaneni both noted that Clark had suffered from right-arm pain and lateral epicondylitis before March 8, 2016. Dr. Fuentes did not perform or prescribe any treatment when Clark saw him in April, and Dr. Pinnamaneni prescribed pain medication, which was the same treatment for Clark's lateral epicondylitis he had been prescribing since 2014. The only new diagnosis regarding Clark's right arm stemmed from an MRI conducted four months after the incident. Dr. Mathias's diagnosis of distal bicep tendon strain and an avulsion injury due to a work-related injury on March 8, 2016, is based on Clark's self-reported history, and the Commission noted that though it was Dr. Mathias's opinion that Clark's elbow condition resulted from an injury sustained at work, objective medical evidence showed that Clark had a history of elbow pain since at least 2014.
The Commission did not err by finding that Clark failed to establish a causal connection between any event on March 8, 2016, and the elbow condition established by the medical evidence. Given the evidence, our standard of review, and our deference to the Commission's credibility findings, we hold that there was a substantial basis for the Commission's decision.
Affirmed.
Abramson and Hixson, JJ., agree.
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RAYMOND R. ABRAMSON, Judge
Tristan Lajuan Mosley appeals the Sebastian County Circuit Court order revoking his suspended imposition of sentence. On appeal, Mosley argues that the circuit court erred in finding that he inexcusably failed to comply with a condition of his suspended sentence. We affirm.
On December 30, 2015, the State charged Mosley with second-degree battery of an officer and resisting arrest. On February 5, 2016, Mosley filed a motion to transfer his case to the Veterans Treatment Court. In the motion, he agreed to plead guilty to second-degree battery and resisting arrest and to be sentenced to a period of supervised probation. On the same day he filed the transfer motion, the court granted it. The court suspended his sentence for five years, and the terms and conditions of his suspended sentence included that he complete the requirements of the Veterans Treatment Court.
On April 25, 2017, the State filed a petition to revoke Mosley's suspended sentence. The State alleged that Mosley did not comply with and complete the terms of the Veterans Treatment Court. The court held a revocation hearing on August 17, 2017.
At the hearing, Mark Green, a parole and probation officer assigned to the Veterans Treatment Court, testified that Mosley was sanctioned on five different occasions for failure to comply with the program's requirements. He stated that Mosley tested positive for methamphetamine on June 12, July 25, and August 1, 2016, and April 4, 2017, and that he tested positive for alcohol on June 6 and August 1, 2016. He further noted that Mosley did not complete his community-service requirements. Green stated that Mosley failed to report to him on five different occasions and then absconded from the program. He explained that a confidential informant reported Mosley's location on June 12, 2017, and that he arrested Mosley that night. He explained that while in the program, Mosley had received treatment for posttraumatic stress disorder (PTSD) and drug rehabilitation.
On cross-examination, Green testified that Mosley is 100 percent disabled based on his PTSD, bipolar disorder, and other mental-health issues. He noted that Mosley had been deployed to Iraq and that he had heard Mosley "was an excellent soldier." He stated that neither Mosley nor his family had contacted him for help during Mosley's stint in the program.
Mosley then testified that he had been in the army for five years and that he had been deployed to Iraq in 2007 and 2008. He testified that he was diagnosed with PTSD in 2012 and that he struggles with the disease daily. He testified that he had family issues that prevented him from complying with the requirements of the Veterans Treatment Court. Specifically, he was trying to reestablish himself with his children, and his fiancée was pregnant. He noted that his fiancée gave birth to the baby in April. He apologized for not completing the program and stated that he wanted to continue treatment with Veterans Affairs.
At the conclusion of the hearing, the court revoked Mosley's suspended sentence for violating the terms and conditions of the Veterans Treatment Court. The court sentenced him to four years' incarceration with an additional two years suspended. Mosley timely appealed his revocation to this court.
Our standard of review in cases involving the revocation of a suspended sentence is well settled. In order to revoke a suspended sentence, the circuit court must find by a preponderance of the evidence that the defendant inexcusably violated a condition of his suspended sentence. Springs v. State , 2017 Ark. App. 364, 525 S.W.3d 490. Once the State introduces evidence of noncompliance in a revocation hearing, the defendant then bears the burden of going forward with some reasonable excuse for noncompliance. Anglin v. State , 98 Ark. App. 34, 249 S.W.3d 836 (2007). Evidence that would not support a criminal conviction in the first instance may be enough to revoke a suspended sentence. Springs , 2017 Ark. App. 364, 525 S.W.3d 490. Determining whether a preponderance of the evidence exists turns on questions of witness credibility and the weight to be given to the testimony. Id. This court defers to the circuit court's determinations regarding the credibility of witnesses and the weight to be given to their testimony. Ware v. State , 2016 Ark. App. 284, 494 S.W.3d 438.
On appeal, Mosley argues that the circuit court erred in revoking his suspended sentence. He concedes that he violated the terms and conditions of his suspended sentence but asserts that he offered two reasonable excuses for his violations. Specifically, he argues that his mental-health issues and his family obligations excused his failure to meet the requirements of the Veterans Treatment Court. He asserts that his circumstances are similar to those in Cogburn v. State , 264 Ark. 173, 569 S.W.2d 658 (1978), and Baldridge v. State , 31 Ark. App. 114, 789 S.W.2d 735 (1990).
In Cogburn , our supreme court reversed a circuit court's finding that the appellant had inexcusably failed to comply with the terms of his probation. Cogburn , 264 Ark. 173, 569 S.W.2d 658. The appellant had been ordered to complete 80 hours a month of volunteer work; however, he was unable to work the full 80 hours because, in addition to his work imposed by the terms and conditions of his probation, he was also working 50 to 60 hours a week to support his family. Id. Moreover, his wife was ill, and he had to care for her during her illness. Id. The appellant had also been ill and had a doctor's note corroborating his testimony. Id. The supreme court found that his failure to work the full 80 hours each month could not fairly be said to have been inexcusable. Id.
In Baldridge , this court reversed the revocation of the appellant's probation, which had been revoked on the basis of failure to pay fines and to appear in person to his probation officer. Baldridge , 31 Ark. App. 114, 789 S.W.2d 735. Appellant, who was twenty years old at the time of the hearing, resided in Longview, Texas, with his mother and three siblings. Id. His mother had cancer and was unable to work. Id. He testified that he was financially unable to come to Arkansas to meet with his probation officer, and he was in arrears on his payments because, other than government assistance, he was the sole provider for his family. Id. Both the appellant and his probation officer related that appellant had made numerous attempts to explain his inability to pay. Id. We held that based on those circumstances, the circuit court's decision that appellant inexcusably failed to comply with probation conditions was clearly against a preponderance of the evidence. Id.
We hold that the circumstances here are unlike those in Cogburn and Baldrige and that the circuit court did not err in finding that Mosley inexcusably failed to comply with the terms and conditions of his suspended sentence. In this case, the court revoked Mosley's suspended sentence for failing to fulfill the requirements of the Veterans Treatment Court. Specifically, Green testified that Mosley was sanctioned on five occasions for violations, he tested positive for methamphetamine on four screenings and for alcohol on two screenings, he failed to meet community-service requirements, and he eventually absconded from the program. Green further testified that Mosley had received mental-health treatment and drug rehabilitation during the program. Given this evidence, we cannot say that the circuit court erred by finding that Mosley's failure to comply with the requirements of the Veterans Treatment Court was inexcusable.
Affirmed.
Gruber, C.J., and Gladwin, J., agree. | [
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RHONDA K. WOOD, Associate Justice
A Pulaski County jury convicted Edward Rogers of three counts of rape. On appeal, he challenges the sufficiency of the evidence, and he alleges the circuit court erroneously prohibited him from cross-examining one of the victims about her misdemeanor conviction for theft of property. We hold that the State presented evidence sufficient to convict Rogers of all three rapes. However, we find that the circuit court erred when it precluded Rogers's cross-examination of one victim's prior conviction. Nevertheless, we affirm because this error was harmless.
I. Facts
The State charged Rogers with the rape of four sisters, TB, MiB, MaB, and LW, who were all under eighteen at the time of the alleged offenses. For years, Rogers, who had a romantic relationship with their mother, lived with the girls. At trial, each sister testified about their specific sexual contacts with Rogers.
First, TB and MiB, seventeen-year-old twins, testified that Rogers acted like a father to them and that they called him "Daddy." They had known him since he began dating their mother when they were approximately five years old. At trial, they described how Rogers had raped them separately when they were thirteen, and they detailed his continued sexual contact with them. Both girls explained that the sexual contact primarily occurred when he had them alone, usually on a blow-up mattress, on the couch in the living room, or in his car. TB testified that Rogers used a "gold condom." She also testified that she witnessed Rogers sexually abusing her three sisters. MiB ultimately told her mother about the rape. MiB had behavioral problems and had run away from home. She told her mother that the reason for her behavior was that Rogers had raped her and her sisters.
MaB was sixteen years old at the time of trial. She testified that Rogers first touched her inappropriately when she was twelve years old in their living room. A few days later, when no one else was home, he raped her. She testified that he had used a condom with a gold wrapper. MaB testified that Rogers had raped her at least five times, either in the living room, her bedroom, or in his car. She also testified that she had loved Rogers and called him "Daddy" prior to the abuse.
The oldest sister, LW, was twenty-one years old at the time of trial. She also testified that she thought of Rogers as a father. She stated that when she was fourteen, Rogers raped her in her bedroom after school when no one else was home. Approximately one month later, he raped her again on the couch in the living room. LW testified that in total, Rogers had raped her five or six times. All four sisters testified that Rogers insinuated their mother would be harmed if they told her, and three of the sisters testified that Rogers threatened to kill himself should they inform their mother of his conduct.
The girls' mother also testified at Rogers's trial. She stated that Rogers was heavily involved in caring for the girls and that he acted as a father. In 2013, MiB told her that Rogers had touched MiB and TB inappropriately. At that time, neither of the girls disclosed that they had been raped. When the mother confronted Rogers, he told her that he had made a mistake and that it would not happen again. He moved out of the house, but the family continued to have contact with him. In November 2014, MiB disclosed to her mother that Rogers had raped her and her sisters. The mother stated that she talked to each of the girls individually and that they all confirmed the abuse. She again confronted Rogers. He told her that he had been abused as a boy, and he threatened to commit suicide. Although the mother admitted that the family struggled financially after Rogers moved out, she denied having encouraged her daughters to fabricate the allegations.
Rogers testified in his defense. He stated that he was the girls' father figure, but he denied ever touching them inappropriately. Rogers claimed that the mother had the girls manufacture the rape charges because she was mad at him.
A jury convicted Rogers of the rapes of MaB, MiB, and LW. The jury acquitted him of the rape of TB. He was sentenced to forty years' imprisonment for the rape of MaB and to two twenty-year terms of imprisonment for the rapes of MiB and LW. The jury recommended that the sentences run concurrently, and the circuit court accepted that recommendation. Rogers appealed to the court of appeals, and it reversed. Rogers v. State , 2017 Ark. App. 521, 536 S.W.3d 128. The State filed a petition for review, and we accepted review under Rule 1-2(e) of the Rules of the Arkansas Supreme Court. On review, we treat the case as if it had been originally filed in our court. Kilgore v. Mullenax , 2017 Ark. 204, 520 S.W.3d 670.
II. Sufficiency of the Evidence
Rogers's first point on appeal challenges the sufficiency of the evidence. He contends that the victims were not credible and that the prosecution presented no physical evidence of rape. The test for determining the sufficiency of the evidence is "whether the verdict is supported by substantial evidence, direct or circumstantial." Jeffries v. State , 2014 Ark. 239, 3, 434 S.W.3d 889, 893. We view the evidence in the light most favorable to the verdict, only considering that evidence which supports the verdict. Id. Testimony of a rape victim alone constitutes sufficient evidence to support a conviction. Hanlin v. State , 356 Ark. 516, 525, 157 S.W.3d 181, 187 (2004).
At Rogers's trial, all three sisters of whom he was convicted of raping testified that Rogers had sexual intercourse with them when they were minors. Specifically, MaB testified that Rogers began touching her inappropriately when she was twelve years old and had sexual intercourse with her just days after her thirteenth birthday. MiB testified that Rogers had forced sexual contact with her when she was thirteen, and later had sexual intercourse with her on several occasions. Finally, LW testified that she was fourteen years old when Rogers first raped her and that it occurred repeatedly.
Here, each victim's testimony, in isolation, constitutes sufficient evidence to support the corresponding conviction. However, in this case, there was more evidence than just the victims' isolated testimony. Rogers exhibited similar behaviors in each rape. Indeed, all four girls were roughly the same age when Rogers began sexually abusing them. Two of the four girls testified that Rogers used a gold condom during intercourse. Two of the girls testified that Rogers drove them to a dead-end street to have intercourse in the back of his car. All four girls shared similar sexual encounters with Rogers in their family living room, and each girl testified that Rogers instructed them not to tell their mother what he had done. Three of the girls testified that Rogers threatened to "kill himself" if they told.
Moreover, all three convictions are corroborated by eyewitness testimony. MaB testified that Rogers performed oral sex on her and MiB while they laid in the same bed. MiB testified to witnessing Rogers engage in penetrative intercourse with MaB. TB, the fourth sister, witnessed Rogers engaging in oral sex on MaB, having intercourse with MiB, and testified to watching a video of Rogers having intercourse with LW.
Viewing all the evidence in the light most favorable to the verdict, and only considering evidence which supports the verdict, we hold that Rogers's conviction is supported by substantial evidence.
III. Cross-Examination on Theft of Property Conviction
Rogers next argues that the circuit court erred in prohibiting his counsel from cross-examining LW about her misdemeanor conviction for theft of property under Arkansas Rule of Evidence 609(a) (2017) which provides that
[f]or the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime (1) was punishable by death or imprisonment in excess of one [1] year under the law under which he was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to a party or a witness, or (2) involved dishonesty or false statement, regardless of the punishment.
The admission or rejection of evidence is left to the sound discretion of the circuit court, and we will not reverse absent an abuse of discretion. Benson v. State , 357 Ark. 43, 160 S.W.3d 341 (2004).
During the cross-examination of LW, Roger's counsel approached the bench and explained that he intended to impeach LW. At that time, the following colloquy occurred:
DEFENSE COUNSEL : She has a misdemeanor conviction out of 2014 for theft of property. Before I impeach her for that, I want to make sure are y'all objecting on that?
PROSECUTOR : Yes. It's a misdemeanor, and it's over-I mean, it's over a year old.
DEFENSE COUNSEL : It's a misdemeanor, but it's in the matter that deals with truthfulness.
PROSECUTOR : Actually theft is not. If it was a forgery, or filing a false police report or something like that.
COURT : I agree.
Rogers argues this ruling was an abuse of discretion because a conviction of theft of property is a crime involving dishonesty and is therefore always admissible under Rule 609(a). In response, the State argues that the issue is not preserved because Rogers failed to proffer the facts underlying the conviction and failed to establish that the theft involved "dishonesty or false statement." We conclude that the circuit court erred.
This court has consistently held that theft crimes involve dishonesty, regardless of the facts underlying the particular offense. See, e.g. , State v. Cassell , 2013 Ark. 221, 427 S.W.3d 663 (stating that the crime was infamous because it was a theft offense, which involves dishonesty); Edwards v. Campbell , 2010 Ark. 398, 370 S.W.3d 250 (holding that misdemeanor theft of property, as defined in Ark. Code Ann. § 5-36-103(a), is a crime of dishonesty); Webster v. State , 284 Ark. 206, 680 S.W.2d 906 (1984) (stating that grand larceny involves dishonesty); Floyd v. State , 278 Ark. 86, 643 S.W.2d 555 (1982) (holding that conviction for theft was admissible for impeachment because it is a crime of dishonesty); James v. State , 274 Ark. 162, 622 S.W.2d 669 (1981) (stating that prior convictions for theft, grand larceny, and forgery all involved dishonesty); Gustafson v. State , 267 Ark. 278, 590 S.W.2d 853 (1979) (holding that convictions for larceny and burglary were indicative of dishonesty under Rule 609(a) ). Further, under Rule 609(a)(2), when considering the admissibility of a crime involving dishonesty, courts are not required to compare the weight of the probative value to the prejudicial effect, and we have held that these crimes are automatically admissible. Wal-Mart Stores, Inc. v. Regions Bank Tr. Dep't , 347 Ark. 826, 69 S.W.3d 20 (2002) (citing congressional commentary to Fed. R. Evid. 609(a), which is identical to our rule).
Here, Rogers sought to impeach LW with her prior misdemeanor-theft conviction. Because this court holds that theft crimes involve dishonesty and are automatically admissible pursuant to Rule 609(a), it was unnecessary for Rogers to proffer the factual circumstances underlying the conviction. See Edwards , 2010 Ark. 398, 370 S.W.3d 250. Accordingly, not only is this issue preserved for our review, but we conclude that the circuit court abused its discretion by refusing to admit this evidence under Rule 609(a).
However, our analysis does not end there. After we determine that a defendant was denied the opportunity to impeach a witness's credibility, we must next consider whether that error was harmless. Winfrey v. State , 293 Ark. 342, 738 S.W.2d 391 (1987). This court has previously found harmless error in rape-conviction appeals. Pigg v. State , 2014 Ark. 433, at 5, 444 S.W.3d 863, 866 (holding on appeal that the court need not determine whether it was error to deny defendant the opportunity to question the victim's credibility when the alleged error would be harmless); Johnston v. State , 2014 Ark. 110, at 8, 431 S.W.3d 895, 899 (holding that erroneous admission of incestuous and pornographic pictures was harmless error in a rape conviction); Kelley v. State , 2009 Ark. 389, at 21, 327 S.W.3d 373, 384 (determining error was harmless in admitting two prior convictions involving indecency with a minor in a rape conviction); Buford v. State , 368 Ark. 87, 91, 243 S.W.3d 300, 303-04 (2006) (finding harmless error when the court erroneously allowed a child-abuse expert to testify as to the victim's credibility in a rape trial). But see Scamardo v. State , 2013 Ark. 163, at 9, 426 S.W.3d 900, 905 (denying a harmless-error argument when the circuit court refused to allow questioning regarding the victim's inconsistent statement as to whether the rape occurred). Here, the circuit court's error fits the harmless-error mold.
An error is harmless when the evidence of guilt is overwhelming and the error is slight. Scamardo , 2013 Ark. 163, at 9, 426 S.W.3d at 905. In Buford , the court found evidence of guilt overwhelming when the trial testimony included graphic detail of the rape, the victim testified to the rape, and another witness testified to witnessing the rape. Buford , 368 Ark. at 91, 243 S.W.3d at 303. Here, the evidence that Rogers raped LW is overwhelming. LW testified in specific detail to multiple occurrences of rape. TB testified that she observed a video of Rogers engaged in sex with LW. Moreover, all four victims described what this court emphasized in Kelley when affirming for harmless error as "remarkably similar conduct on the part of [the defendant]." Kelley , 2009 Ark. 389, at 20, 327 S.W.3d at 383. The girls similarly described their sexual encounters with Rogers, including the color of the condom, the dead-end road where he took two of them, and Rogers's suicide threats.
Additionally, if Rogers experienced any prejudice, it was slight. Whether an error is slight hinges on the degree to which the defendant was prejudiced. Id. The proposed impeachment testimony of LW, unlike the victim's testimony in Scamardo , did not directly relate to the allegation at hand. Thus, although there was error, it was harmless.
Affirmed; court of appeals decision vacated.
Womack, J., concurs.
Kemp, C.J., and Baker and Hart, JJ., dissent.
On appeal, Rogers did not make a confrontation-clause argument under the Sixth Amendment, nor did he make that challenge at trial. This court will not address an argument, even a Sixth Amendment constitutional one, that has not been preserved. Roston v. State , 362 Ark. 408, 409, 208 S.W.3d 759, 760 (2005). His argument is limited to the admissibility under Rule 609. | [
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MIKE MURPHY, Judge
Appellants University of Arkansas at Pine Bluff (UAPB) and the Public Employee Claims Division appeal from the March 1, 2018 opinion of the Arkansas Workers' Compensation Commission (Commission) that determined appellee Carl Hopkins had established a causal connection between his work-related injury and the additional medical treatment rendered and that appellee was entitled to additional temporary total-disability benefits from January 24 through June 19, 2017. The Commission's opinion affirmed the opinion of the administrative law judge (ALJ). On appeal, appellants argue that the Commission's decision is not supported by substantial evidence. We affirm.
On April 8, 2016, appellee, then fifty-three years old, suffered a compensable neck injury while transporting components of a large stage from the school gym to the convention center at UAPB. He explained that he reached over to grab a smaller stage that was rolling off the sidewalk, was pushed down, and felt a pop in his neck. He did not report the injury that day. Id. Once he developed left-arm and shoulder pain that became unbearable, he reported the incident on April 19, 2016, and was instructed to see a doctor at Health Care Plus where he eventually came under the care of Dr. Justin Seale.
Dr. Seale recommended against surgical intervention and treated appellee conservatively with epidural injections and physical therapy until he was released on November 23, 2016, with a zero percent impairment rating. Appellee had been receiving temporary total-disability benefits until his healing period ended in November. In December 2016, Dr. Seale referred appellee for a functional capacity evaluation. The result revealed that appellee put forth a reliable effort throughout the evaluation and that he could perform work only in the medium-duty classification.
Appellee remained symptomatic and sought additional medical treatment. His primary-care physician recommended that he see neurosurgeon Dr. Brad Thomas. On January 12, 2017, Dr. Thomas conducted an x-ray and opined that appellee was not a surgical candidate, but he ordered an MRI and excused appellee from work. A January 20, 2017 MRI revealed multilevel degenerative disc disease with multilevel severe bilateral neural foraminal narrowing and moderate canal narrowing at C5-C6. After reviewing the MRI and because conservative treatment had failed under Dr. Seale's care, Dr. Thomas recommended surgery. Following the MRI, Dr. Thomas excused appellee from work from January 24 to April 14, 2017. Appellee underwent surgery on March 2, 2017. Appellee testified at the administrative hearing that following surgery, he felt a lot better and "without that surgery ... [he] wouldn't have made it." He reported that the shooting type of pain had improved but that he now suffers from weakness, aching, and numbness. After surgery, Dr. Thomas extended appellee's off-work status until May 30, 2017, and per appellee's testimony, he returned to work on June 19, 2017.
The ALJ conducted a hearing on July 14, 2017, and appellee contended that he was entitled to additional medical treatment, temporary total-disability benefits, and attorney's fees. The ALJ first found that appellants were not responsible for medical expenses incurred through Dr. Thomas because appellee did not receive permission to change physicians from either appellants or the Commission. Next, the ALJ awarded an additional period of temporary total disability from January 24 through June 19, 2017. On March 1, 2018, the Commission affirmed and adopted the opinion of the ALJ.
Arkansas law permits the Commission to adopt the ALJ's opinion. White v. Butterball, LLC , 2018 Ark. App. 7, at 4, 538 S.W.3d 240, 242. When the Commission adopts the ALJ's opinion, it makes the ALJ's findings and conclusions its findings and conclusions, and for the purpose of appellate review, we consider both the ALJ's opinion and the Commission's majority opinion. Id.
Appellants timely appealed the Commission's decision, arguing that substantial evidence did not support its finding that there was a causal connection between appellee's work-related injury and the treatment rendered by Dr. Thomas. Appellants also argue that substantial evidence did not support the Commission's finding that appellee was entitled to additional temporary total disability.
The standard of review in workers'-compensation cases is well settled. On appeal, this court views the evidence in the light most favorable to the Commission's decision and affirms the decision if it is supported by substantial evidence. Schall v. Univ. of Ark. for Med. Scis. , 2017 Ark. App. 50, at 2, 510 S.W.3d 302, 303. Substantial evidence exists if reasonable minds could reach the Commission's conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission but whether reasonable minds could reach the result found by the Commission; if so, the appellate court must affirm. Id.
Turning to the first point on appeal, the Commission found that "Dr. Thomas' opinion is entitled to greater weight as surgery revealed disc protrusions with nerve root compression," which was consistent with the radiology and EMG/NEV reports. The opinion noted the following:
There is some difference of opinion between the radiologist and Dr. Seale with regard to bulging versus herniated discs, and there is a difference of opinion between Dr. Seale and Dr. Thomas as to whether or not the claimant was a candidate for surgery. But the evidence of record shows the claimant was able to work for the respondent-employer for nine (9) years with no history of limitations, absences from work, or medical treatment for his neck or shoulder until the incident at work on April 8, 2016. Dr. Thomas' surgery was also helpful in improving the claimant's pain. The claimant has made a good faith effort to return to work after his release by Dr. Seale and by Dr. Thomas. He also performed reliably on the Functional Capacity Evaluation. Although the claimant's AR-N shows a shoulder injury, I do not expect a person to be able to know that radiating pain in the arm may actually be emanating from the neck.
On appeal, appellants direct our attention to the fact that Dr. Thomas originally declared that appellee was not a candidate for surgery related to his neck pain, and the mention of herniated discs had not previously been noted in appellee's earlier medical reports. Appellants cite Roberts v. Leo Levi Hospital , 8 Ark. App. 184, 649 S.W.2d 402 (1983), to support their assertion that a medical opinion based solely on a claimant's history and own subjective belief that a medical condition is related to a compensable injury is not a substitute for credible evidence. In Roberts , the Commission found appellant failed to prove she had sustained a compensable injury. In so finding, the Commission stated that there were numerous inconsistencies in appellant's testimony and that her doctor's opinion, largely based on facts related to him by the appellant, lacked sufficient independent knowledge upon which to corroborate appellant's claim.
Roberts is distinguishable from the case at hand. In Roberts , the Commission did not disregard the opinion of the doctor merely because it was based on a medical history related by the claimant but because it found that the claimant's history as stated to the doctor was at variance with her statements on other occasions and that the medical evidence based on the claimant's statements was, therefore, entitled to little weight. Here, on the other hand, the Commission found appellee's testimony and the history as relayed to the doctor to be credible and found the doctor's opinion based on that history to be convincing. The opinion mentioned appellee had worked for the employer for nine years without any problems; he made a good-faith effort to return to work; and he performed reliably on the functional capacity evaluation.
It is well established that the credibility of witnesses and the weight to be given to their testimony are within the exclusive province of the Commission. Webster v. Ark. Dep'tof Corr. , 2017 Ark. App. 558, at 3, 537 S.W.3d 731, 734. Thus, we are foreclosed from determining the credibility and weight to be accorded to each witness's testimony, and we defer to the Commission's authority to disregard the testimony of any witness, even a claimant, as not credible. Id. When there are contradictions in the evidence, it is within the Commission's province to reconcile conflicting evidence and determine the facts. Id. Here, the Commission found appellee and Dr. Thomas to be credible. Thus, deferring to the Commission's credibility determination, we hold that substantial evidence supported the decision that additional medical treatment was necessary.
For their second point on appeal, appellants contend that appellee is not entitled to additional temporary total-disability (TTD) benefits. The Commission awarded additional TTD benefits from January 24, 2017, to June 19, 2017-the healing period while in Dr. Thomas's care until appellee returned to work. Notably, the Commission found that appellants were not liable for the medical expenses stemming from Dr. Thomas's treatment because appellee did not receive permission to change physicians.
A TTD occurs when a claimant is within his or her healing period and suffers a total incapacity to earn wages. Kiswire Pine Bluff, Inc. v. Segars , 2018 Ark. App. 296, at 7-8, 549 S.W.3d 410, 415. The healing period continues until the employee is restored as much as the permanent character of his or her injury will permit; the healing period ends when the underlying condition that caused the disability is stabilized and no additional treatment will improve the condition. Id. The Commission determines as a matter of fact when the healing period has ended. Id. Its decision will be affirmed on appeal if it is supported by substantial evidence. Id. The claimant's "failure to return to work must be causally related to the injury." Id.
Because we affirm that the surgery performed by Dr. Thomas was reasonably necessary and related to appellee's injury, we also hold that appellee was in a healing period during that time and could not work, thus entitling him to additional TTD benefits.
Affirmed.
Whiteaker And Vaught, JJ., agree. | [
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BRANDON J. HARRISON, Judge
Earl Alexander appeals the revocation of his probation and suspended imposition of sentence (SIS), arguing that the circuit court erred in finding that he inexcusably violated the terms and conditions of his probation and SIS. We affirm.
In April 2009, Alexander pled guilty to possession of a controlled substance with intent to deliver and was sentenced to eight years' probation (CR-09-334). In April 2016, Alexander was charged with possession of a controlled substance (CR-16-384). Four days later, the State petitioned to revoke Alexander's probation in CR-09-334, alleging a failure to pay fines, costs, and fees; pay probation fees; and live a law-abiding life. The State also alleged he had committed the offense of possession of a controlled substance. In October 2016, Alexander pled guilty in CR-16-384 and was sentenced to six years' SIS. The revocation petition in CR-09-334 was nolle prossed.
In February 2017, the State petitioned to revoke Alexander's probation in CR-09-334 and his SIS in CR-16-384. The State alleged the following violations: (1) failure to pay fines, costs, and fees as directed; (2) failure to pay probation fees; (3) failure to live a law-abiding life; and (4) commission of the offenses of possession of cocaine with purpose to deliver, possession of a schedule I controlled substance with purpose to deliver, and possession of a schedule VI controlled substance with purpose to deliver (CR-17-202).
The circuit court convened a revocation hearing on 6 June 2017. Anitra Thompson, an employee of the Crittenden County Sheriff's Office, testified that Alexander owed $3395 in CR-09-334, $895 in CR-16-384, and that he had not made any payments on either case. West Memphis police officer Jeff Shehan, who initiated the traffic stop that resulted in Alexander's new charges in CR-17-202, testified that the driver of the vehicle, Sherita Walker, told him that the drugs found on her person belonged to Alexander. Officer Shehan also testified that Alexander admitted that he had smoked marijuana. Finally, Walker testified that as she was pulling off the street and into a parking lot, Alexander "threw this stuff to me. ... It was a bag, a little thing. I think, it was some weed or whatever. He told me to cuff it[.]"
The circuit court concluded that Alexander had made no payments and had admitted smoking marijuana, both of which are violations sufficient to revoke his probation and SIS. The court also stated that it believed Walker's testimony: "I believe you gave the marijuana and what turned out to be cocaine to [Walker] and I believe she didn't know you had it with her. So, that is also a basis for the violation of your probation and your suspended imposition of sentence." The court sentenced Alexander to twenty-eight years' imprisonment with ten years' SIS in CR-09-334 and six years' imprisonment in CR-16-384, to run concurrently. Alexander has now timely appealed.
To revoke probation or a suspended sentence, the burden is on the State to prove the violation of a condition of the probation or suspended sentence by a preponderance of the evidence. Jones v. State , 355 Ark. 630, 144 S.W.3d 254 (2004). On appellate review, the circuit court's findings will be upheld unless they are clearly against the preponderance of the evidence. Id. Because the burdens are different, evidence that is insufficient for a criminal conviction may be sufficient for revocation of probation or suspended sentence. Id. Thus, the burden on the State is not as great in a revocation hearing. Id. Furthermore, because the determination of a preponderance of the evidence turns on questions of credibility and weight to be given to the testimony, we defer to the circuit court's superior position. Id. Finally, only one violation is required to sustain a revocation. Springs v. State , 2017 Ark. App. 364, 525 S.W.3d 490.
On appeal, Alexander argues that the circuit court erred in finding that he had inexcusably violated the terms and conditions of his probation and SIS. First, Alexander concedes that he admitted smoking marijuana and that this was a violation, but he argues that "there was no testimony presented by the State that this was inexcusable." Next, Alexander contends that the State failed to prove that he inexcusably failed to make payments as ordered. He states that simply demonstrating the amount owed on his cases was not enough and that "the sentencing court must inquire into the reason for nonpayment." Alexander cites no authority for this argument. Finally, Alexander asserts that the State failed to prove that he did not live a law-abiding life or that he committed the new offenses. He argues that the only evidence against him was Walker's testimony and that her testimony was not corroborated.
As noted above, only one violation is required to sustain a revocation. In this case, we hold that the circuit court did not err in finding that Alexander had violated the conditions of his probation and his SIS by not making required payments. Our case law holds that when the alleged violation is a failure to make payments as ordered, it is the State's burden to prove that the failure to pay was inexcusable; once the State has introduced evidence of nonpayment, the burden of going forward shifts to the defendant to offer some reasonable excuse for failing to pay. Reyes v. State , 2012 Ark. App. 358, 2012 WL 1869512. The shifting burden draws out the reason for nonpayment, and the defendant may not "sit back and rely totally upon the trial court to make inquiry into his excuse for nonpayment." Hanna v. State , 2009 Ark. App. 809, at 5, 372 S.W.3d 375, 379 (citing Brown v. State , 10 Ark. App. 387, 389, 664 S.W.2d 507, 508 (1984) ). In this case, Alexander offered no excuse for his nonpayment, and the circuit court had no duty to ask why Alexander failed to pay.
Affirmed.
Virden and Klappenbach, JJ., agree.
Alexander also argues on appeal that his arrest on the new criminal charges was illegal. However, that argument is irrelevant to the present appeal; this appeal concerns only whether the circuit court properly found that Alexander had violated the terms and conditions of his probation and SIS. | [
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Karen R. Baker, Associate Justice
This appeal stems from appellant Christopher Segerstrom's conviction and sentence in Washington County Circuit Court for one count of capital murder and a sentence of life without the possibility of parole. Segerstrom v. State , 301 Ark. 314, 783 S.W.2d 847 (1990). At the time of the offense on July 26, 1986, Segerstrom was fifteen-years old.
In Miller v. Alabama , 567 U.S. 460, 479, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the Supreme Court of the United States held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." The Court further held that defendants who committed homicide crimes as juveniles and faced a sentence of life without parole were entitled to a sentencing hearing that would permit a judge or jury to consider the individual characteristics of the defendant and the individual circumstances of the crime as mitigating factors for a lesser sentence.
Id. at 489, 132 S.Ct. 2455 ; Robinson v. State , 2018 Ark. 353, at 2, 563 S.W.3d 530.
Following Miller , and this court's opinions in Jackson v. Norris , 2013 Ark. 175, 426 S.W.3d 906 and Kelley v. Gordon , 2015 Ark. 277, 465 S.W.3d 842, Segerstrom filed a petition for writ of habeas corpus in the Hot Spring County Circuit Court on the ground that he was a juvenile when he committed the crime and was entitled to have his sentence vacated pursuant to Miller . On September 19, 2016, the circuit court granted Segerstrom's petition for writ of habeas corpus, vacated his sentencing order and remanded Segerstrom's case to Washington County for resentencing.
On April 24, 2017, the State filed a motion for resentencing in the Washington County Circuit Court pursuant to the Fair Sentencing of Minors Act of 2017 (FSMA). Act of Mar. 20, 2017, No. 539, 2017 Ark. Acts 2615. On May 3, the circuit court held a hearing on the matter. On May 17, the circuit court entered an order denying Segerstrom's request for a resentencing hearing and sentenced Segerstrom to life imprisonment with the possibility of parole after thirty years based on the FSMA. The circuit court held that the FSMA eliminated "life without parole as a sentencing option for minors and [created] more age-appropriate sentencing standards in compliance with the United States Constitution for minors who commit serious crimes." The circuit court further held that the FSMA went into effect on March 21, 2017, when it was signed by the governor and applied retroactively. On June 16, Segerstrom filed a motion to reconsider and on June 28, the circuit court denied the motion to reconsider, holding that the FSMA applied retroactively.
Segerstrom appeals and presents five issues: (1) the circuit court erred when it retroactively applied the penalty and parole provisions of the FSMA to resentence Segerstrom to life imprisonment with the possibility of parole after thirty years; (2) the Arkansas Supreme Court has held that juvenile capital murderers who were sentenced to life imprisonment without parole are entitled to be resentenced, and denying Segerstrom the relief granted to other Miller - Jackson defendants violates the federal and state constitutional rights of due process, equal protection and fundamental fairness; (3) neither the retroactive parole-eligibility provision of the FSMA nor the holding in Montgomery v. Louisiana , 577 U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), invalidate the Arkansas Supreme Court's holding in Jackson , 2013 Ark. 175, 426 S.W.3d 906, and Gordon , 2015 Ark. 277, 465 S.W.3d 842 ; (4) Miller requires that Segerstrom receive "individualized" resentencing by a "judge or jury," 567 U.S. at 489, 132 S.Ct. 2455, and a parole hearing under section 13 of the FSMA satisfies neither of those requirements; and (5) the FSMA, as applied to Segerstrom, violates the federal and state constitutional guarantee against ex post facto legislation. We reverse and remand.
Points on Appeal
For his first point on appeal, Segerstrom relies on Harris v. State , 2018 Ark. 179, at 14, 547 S.W.3d 64, to contend that the circuit court erred when it retroactively applied the penalty and parole provisions of the FSMA to resentence Segerstrom to life imprisonment with the possibility of parole after thirty years. Segerstrom asserts that, like Harris, he is a Miller - Jackson inmate, no longer serving a sentence to which the parole-eligibility provision of the FSMA could attach to and the circuit court's decision must be reversed. The State responds that the circuit court correctly ruled that the FSMA retroactively applied to Segerstrom. The State further responds that Harris was wrongly decided and should be overruled.
In Harris , 2018 Ark. 179, 547 S.W.3d 64, we addressed the issue presented in this case and held that the penalty provisions of the FSMA are not retroactive. Further, we held that the revised punishment for juveniles convicted of capital murder applies only to crimes committed on or after the effective date of the FSMA-March 20, 2017. Id. at 14, 547 S.W.3d at 71. Accordingly, we held that the parole-eligibility provision did not apply at the time of Harris's hearing on his motion for resentencing because "by its plain language, the provision applies only to those juvenile offenders who are serving a sentence for either capital or first-degree murder." Id. at 11, 547 S.W.3d at 70. We held that because Harris's sentence was vacated in 2016, Harris was no longer serving a sentence to which parole eligibility could attach. Id. Therefore, the FSMA parole-eligibility provision did not apply to Harris at the time of his hearing because after his original sentence was vacated, Harris was no longer serving a sentence to which parole eligibility could attach. Id.
Recently, in Robinson , 2018 Ark. 353, 563 S.W.3d 530, we referenced our decision in Harris and held that the circuit court erred in applying the FSMA to Robinson's case and that Robinson was entitled to a hearing to present Miller evidence for consideration. Robinson, like Harris, committed his crime before the effective date of the FSMA, and we held that the FSMA penalty provisions did not apply. Robinson's sentence was vacated by the circuit court in 2016 and Robinson, like Harris, was no longer serving a sentence to which parole eligibility could attach. Accordingly, the parole-eligibility provision of the FSMA did not apply to Robinson at the time of his hearing. Based on our decision in Harris , we held that the circuit court erred in applying the FSMA to Robinson's case and Robinson was entitled to a hearing to present Miller evidence for consideration and sentencing within the discretionary range for a Class Y felony, which is ten to forty years or life. See Ark. Code Ann. § 5-4-401(a) (Repl. 2013); Harris , 2018 Ark. 179, 547 S.W.3d 64 ; Jackson , 2013 Ark. 175, 426 S.W.3d 906 ; Robinson , 2018 Ark. 353, at 3-4, 563 S.W.3d 530. We also specifically declined the State's invitation to overrule Harris .
With this history in mind, we turn to Segerstrom's point on appeal. Consistent with our decisions in Harris and Robinson , we hold that the circuit court erred in applying the FSMA to Segerstrom's case. Segerstrom is entitled to a hearing to present Miller evidence for consideration and sentencing within the discretionary range for a Class Y felony, which is ten to forty years or life. See Ark. Code Ann. § 5-4-401(a) ; Harris , 2018 Ark. 179, 547 S.W.3d 64 ; Jackson , 2013 Ark. 175, 426 S.W.3d 906 ; Robinson , 2018 Ark. 353, 563 S.W.3d 530.
Because we reverse and remand on Segerstrom's first point on appeal, we do not reach Segerstrom's remaining points on appeal.
Reversed and remanded.
Wood and Wynne, JJ., concur.
Womack, J., dissents.
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ROBIN F. WYNNE, Associate Justice
Petitioner Shawn Trevell Rainer is incarcerated serving a term of 960 months' imprisonment in the Arkansas Department of Correction for his conviction of second-degree murder. The Arkansas Court of Appeals affirmed his conviction in Rainer v. State , 2012 Ark. App. 588, 2012 WL 5328599, and Rainer filed the instant petition in which he seeks permission from this court to proceed in the trial court with a petition for writ of error coram nobis.
Rainer alleges that trial error resulted in the imposition of an illegal sentence, but because a petition for the writ is not the means for addressing the issue, we deny his petition to reinvest jurisdiction in the trial court. Rainer later filed a motion for default judgment under Rule 55 of the Arkansas Rules of Civil Procedure (2018), which we also deny.
In his petition, Rainer alleges that he was initially charged with first-degree murder as a "small habitual offender." The information in the record on appeal sets out the charge, in addition to first-degree murder, that Rainer was a habitual offender and had been convicted of two previous felonies, one of which was a 1998 conviction for second-degree murder. The judgment of conviction that Rainer would challenge reflects that he was convicted of second-degree murder and sentenced to 960 months' imprisonment, with the judgment noting an enhancement imposed under Arkansas Code Annotated section 5-4-501(a). Rainer asserts that during the sentencing phase, the jury was incorrectly instructed to consider his punishment with a "serious violent offender" enhancement under Arkansas Code Annotated section 5-4-501(c) (Supp. 2007), without objection from defense counsel. Rainer made similar allegations in his petition under Arkansas Rule of Criminal Procedure 37.1 (2017) without obtaining a ruling on the issue. See State v. Rainer , 2014 Ark. 306, 440 S.W.3d 315 (reversing the grant of postconviction relief on a different claim). In the petition before us, Rainer alleges that the enhancement on the judgment is facially invalid, and he contends that it was trial error to permit the harsher enhancement to be imposed.
Our standard of review for granting permission to reinvest jurisdiction in the circuit court to pursue a writ of error coram nobis requires that this court grant permission for a petitioner to proceed only when it appears that the proposed attack on the judgment is meritorious. Howard v. State , 2012 Ark. 177, at 4-5, 403 S.W.3d 38, 43. In making such a determination, we must look to the reasonableness of the allegations of the petition and to the existence of the probability of the truth thereof. Id.
A writ of error coram nobis is an extraordinarily rare remedy, and proceedings for the writ are attended by a strong presumption that the judgment of conviction is valid. Jackson v. State , 2018 Ark. 227, at 2, 549 S.W.3d at 358. The function of the writ is to secure relief from a judgment rendered while there existed some fact that would have prevented its rendition if it had been known to the trial court and which, through no negligence or fault of the defendant, was not brought forward before rendition of the judgment. Id. The petitioner has the burden of demonstrating a fundamental error of fact extrinsic to the record. Id. The writ is granted only to correct some error of fact, and it does not lie to correct trial error or to contradict any fact already adjudicated. Smith v. State , 200 Ark. 767, 140 S.W.2d 675 (1940).
The claims that Rainer would raise in an error coram nobis petition are founded on his allegations that the information was not properly amended and that the sentence on the judgment was therefore invalid, which are not errors extrinsic to the record. Assertions of trial error that could have been raised at trial are not within the purview of a coram nobis proceeding. Martinez-Marmol v. State , 2018 Ark. 145, at 4, 544 S.W.3d 49, 53. Rainer alleges his attorney failed to challenge the amendment of the information. Claims that counsel was ineffective are also not grounds for the writ. Wooten v. State , 2018 Ark. 198, at 3, 547 S.W.3d 683, 685.
To the extent that Rainer appears to contend that he could only be sentenced under Arkansas Code Annotated section 5-4-501(a), he is mistaken. As the State notes in its response, the subsection's notation on the judgment appears to be a scrivener's error because the jury, as Rainer admits, was instructed under subsection (c) of the statute, and Rainer's two previous convictions described in the information charging him as a habitual offender do not fall within the parameters of subsection (a) because one of those previous convictions was for second-degree murder.
Rainer frames the issue as one of an illegal sentence. This court views an issue of a void or illegal sentence as being an issue of subject-matter jurisdiction that can be addressed at any time. Richie v. State , 2009 Ark. 602, at 4, 357 S.W.3d 909, 912. An illegal sentence is one that is illegal on its face. Jackson v. State , 2018 Ark. 209, at 4, 549 S.W.3d 346, 348. A sentence is illegal on its face when it is void because it is beyond the trial court's authority to impose and gives rise to a question of subject-matter jurisdiction. Id.
Under section 5-4-501(c), Rainer was subject to being sentenced to imprisonment for a term of not less than forty years nor more than eighty years, or life. Rainer's sentence-960 months' imprisonment, or imprisonment for eighty years-falls within that range. Although Rainer alleges his sentence is illegal and that he was convicted of an offense for which he was not charged, the factual basis for these claims is insufficient to go beyond allegations of a defective information and trial error stemming from insufficient notice for an "amendment" of the information. General defective-information allegations do not implicate the facial validity of a trial court's judgment or jurisdiction. Anderson v. Kelley , 2018 Ark. 222, at 3, 549 S.W.3d 913, 915. As noted, the information included a habitual-offender allegation with a description of the two previous convictions that included one for second-degree murder, which brought the charge within the parameters of section 5-4-501(c). Rainer's allegations-that the specific language used was insufficient to provide notice of that charge and distinguish the enhancement from one under subsection (a) of the statute-did not therefore raise a jurisdictional issue concerning the judgment.
Petition and motion denied.
The petition for leave to proceed in the trial court is necessary because the trial court can entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal only after we grant permission. Jackson v. State , 2018 Ark. 227, at 2, 549 S.W.3d 356, 358.
Rainer does not set out in his motion a basis for Rule 55, which permits an application for default judgment in civil proceedings when a party against whom relief is sought has failed to plead or otherwise defend as required by the civil procedure rules, to apply in these circumstances. The State filed a response to Rainer's petition for permission to proceed with a petition for relief on a criminal judgment within the time limitation set out in Arkansas Supreme Court Rule 2-1(d) (2018), which allows but does not require that a response be filed.
Although the State references Arkansas Code Annotated section 5-4-501(c) (Supp. 2009) as the applicable statute, because Rainer's crime was committed on June 14, 2009, Act 1395 of 2009 Acts of Arkansas, which was effective as of July 31, 2009, was not applicable.
The term was without eligibility for parole or community correction transfer except under Arkansas Code Annotated section 16-93-1302, which permitted parole after the age of fifty-five. Ark. Code Ann. § 16-93-1302 (Repl. 2006) (repealed 2011). | [
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N. MARK KLAPPENBACH, Judge
Appellant Rodney Antonio Willis was convicted by a jury in Mississippi County Circuit Court of two counts of aggravated robbery. The charges related to two armed robberies committed on the night of April 4, 2016, in Blytheville, Arkansas, one at Jordan's QuikStop and one at a Pizza Hut. Appellant's sole argument on appeal is that the trial court erred in denying his motions for directed verdict because there was not sufficient evidence to corroborate the testimony of his accomplice, Courtney Ford. We hold that the trial court did not err in denying appellant's motions and affirm.
A person is criminally liable for the conduct of another person when he is the accomplice of another person in the commission of an offense.
Ark. Code Ann. § 5-2-402 (Repl. 2013); Davis v. State , 2013 Ark. App. 658, 430 S.W.3d 190. An accomplice is a person who, with the purpose of promoting or facilitating the commission of an offense, solicits, advises, encourages, or coerces the other person to commit it; aids, agrees to aid, or attempts to aid the other person in planning or committing it; or having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so. Ark. Code Ann. § 5-2-403 ; Davis, supra.
We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Snider v. State , 2010 Ark. App. 694, 378 S.W.3d 264. The test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, either direct or circumstantial; evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Id. On appeal, we view the evidence in the light most favorable to the State, considering only that evidence that supports the verdict. Id. A jury is free to believe all or part of a witness's testimony, and we do not weigh the credibility of witnesses on appeal-that is a job for the finder of fact, not the appellate court. Foster v. State , 2017 Ark. App. 63, 510 S.W.3d 782.
Arkansas law is clear that a conviction cannot be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. Procella v. State , 2016 Ark. App. 515, 504 S.W.3d 686. The corroboration of accomplice testimony is not sufficient if it merely shows that the offense was committed and the circumstances thereof. Smith v. State , 2012 Ark. App. 534, 423 S.W.3d 624. The corroboration must be sufficient, standing alone, to establish the commission of the offense and to connect the defendant with it. Id. The test for corroborating evidence is whether, if the testimony of the accomplice were totally eliminated from the case, the other evidence independently establishes the crime and tends to connect the accused with its commission. Id. The corroborating evidence may be circumstantial so long as it is substantial; evidence that merely raises a suspicion of guilt is insufficient to corroborate an accomplice's testimony. Riley v. State , 2009 Ark. App. 613, 343 S.W.3d 327. The presence of an accused in proximity of a crime, opportunity, and association with a person involved in the crime are relevant facts in determining the connection of an accomplice with the crime. Id. Corroborating evidence need not, however, be so substantial in and of itself to sustain a conviction. Smith, supra. Rather, it need only, independently of the testimony of the accomplice, tend in some degree to connect the defendant with the commission of the crime. Procella, supra .
There was no dispute that two masked females wearing black hoodies entered the two Blytheville businesses on the night in question, pointed a gun at the employees, and demanded money before they fled in a white Dodge Charger. One of those females, Courtney Ford, later turned herself in to the police. She admitted that she and a female friend, Jamacia "JJ" Nevels, planned the armed robberies with Dante Reed, who drove the car, and with appellant, who rode in the front passenger seat of the Charger. Ford said that appellant gave her the gun that she used in the robberies.
Ford testified that before the robberies, they went to Reed's house. Ford said that she wanted to go home, but appellant pulled out a gun and told her that she was not going anywhere. The four went to the Family Dollar store, and then all four went to Wal-Mart to "get hoodies and stuff." Ford said that Nevels picked out the hoodies, and Reed paid for them. Ford stated that when they went to Jordan's QuikStop, appellant told her and Nevels to go in even though she (Ford) was scared and said she "was not going to do it." Ford testified that appellant told the girls that they "were going to do it because [Reed] did not get all of this stuff for nothing." Ford said that she got the gun from appellant, she and Nevels went into the store, they demanded the money, Nevels grabbed the money, and they ran back to the car. She said that it was appellant's idea to rob the Pizza Hut, which they accomplished in the same manner as the convenience store. She testified that all four of them got money from the robberies and that she returned the gun to appellant.
An employee at Jordan's QuikStop, James Sledge, testified that he was working on the night that the store was robbed at gunpoint by two masked girls wearing hoodies. A Pizza Hut employee testified that two females came in and robbed the restaurant at gunpoint and that they left in a white Charger.
A Blytheville police officer, Eric Ferrell, testified that he retrieved the video footage from Jordan's QuikStop, which had been robbed at approximately 9:30 p.m. Ferrell was able to acquire still photographs of the two female suspects, which led to Ford turning herself in to the police. Ford was the first to bring up appellant's involvement when he met with her; Ferrell said that he did not bring up appellant in the interview.
An asset-protection manager at Wal-Mart, Brandon Smith, testified about his retrieval of video surveillance in the store recorded between 8:26 p.m. and 8:38 p.m. Smith testified about the video clips shown to the jury, which showed the parking lot, the entry to the store, the bathroom area, the hallway leading to the cash registers, and the exit from the store.
Ferrell testified that based on the Wal-Mart video, he could see two black males and two black females exiting a white four-door Dodge Charger and subsequently purchasing black hoodies. Ferrell identified the males as Dante Reed and appellant. Ferrell identified the females as Courtney Ford and Jamacia Nevels. He stated that appellant was observed entering the bathroom at approximately 8:28 p.m. and exiting one minute later, crossing the main aisle into the store and entering the clothing section. Ferrell stated that appellant was seen on the video stopping to talk to Reed, and then Reed proceeded into the clothing section, whereas appellant headed toward the exit. Appellant went off camera near the store's exit at approximately 8:31 p.m. Ford, Nevels, and Reed were observed in the clothing department. Reed paid for two black hoodies at a self-checkout register at approximately 8:32. Ford was observed carrying the merchandise out of the store, followed by Nevels. Reed was seen reentering the driver's seat of the vehicle, and the two females were seen entering the back seats. The vehicle left the parking lot at approximately 8:38 p.m. Ferrell completed affidavits for the arrest of Reed, Nevels, and Ford a few days before he did for appellant. Ferrell explained that this was because he first sought to review the entirety of the Wal-Mart footage and to obtain statements from the others involved.
When appellant was interviewed by the police, he stated that Reed is his cousin, that Reed drives a Dodge Charger, and that he had gone out to eat with Reed and two girls that day. Appellant denied knowing anything about the robberies or participating in any way.
Appellant's attorney moved for directed verdict, in part, on the basis that in order to be sufficient evidence, Ford's testimony was required to be, but had not been, corroborated by other evidence tending to connect appellant with the commission of the robberies. Appellant renewed this motion at the appropriate times, and each motion was denied. The jury found appellant guilty, the judgment of conviction was filed of record, and this timely appeal followed.
Appellant is incorrect in his assertion that there was not sufficient evidence presented to corroborate Ford's testimony. As stated above, the presence of an accused in proximity of a crime, opportunity, and association with a person involved in the crime are relevant facts in determining the connection of an accomplice with the crime. Foster, supra. Appellant admitted that Reed is his cousin and that he had been with Reed and the two girls that day in the Dodge Charger. Ford had testified to the four of them going to Wal-Mart to purchase hoodies for the girls to wear during the robberies. The Wal-Mart video supported Ford's testimony about the Wal-Mart shopping trip and about appellant being with them for that shopping trip, which occurred approximately one hour before the armed robberies. Appellant was seen in the company of the persons who purchased the hoodies, and the act of acquiring the hoodies was a substantial step toward the commission of these crimes.
We hold that there was substantial corroborating evidence to connect appellant with these robberies, and we thus affirm appellant's convictions. See Maynard v. State , 21 Ark. App. 20, 727 S.W.2d 858 (1987).
Affirmed.
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DAVID M. GLOVER, Judge
Anne O'Hara Bynum was charged in Drew County Circuit Court with the offenses of concealing birth and abuse of a corpse. The circuit court granted Bynum's motion for directed verdict as to the offense of abuse of a corpse. A jury, after deliberating for only four minutes, convicted Bynum of concealing birth, a Class D felony, and sentenced her to the maximum sentence of six years in prison. Bynum appeals, arguing the circuit court (1) erred in denying her motion to dismiss, timely renewed as a motion for directed verdict, both as a matter of statutory construction and constitutional law; (2) abused its discretion in allowing discussion of abortion, evidence of her abortion history, and evidence she ingested medication before giving birth; and (3) erred in allowing evidence of her purported admission during a pretrial competency exam when competency was not an issue at trial. We find merit in Bynum's argument that the circuit court abused its discretion in allowing the discussion of prior abortions, evidence of her abortion history, and evidence that she ingested medication prior to giving birth; therefore, we reverse and remand.
Factual Summary
There are no factual disputes. In early 2015, Bynum, a 37-year-old divorced woman living with her mother, stepfather, brother, and four-year-old son, T.B., outside of Monticello, discovered she was pregnant. She believed her mother would not allow her and T.B. to continue living in her home if her mother learned Bynum was pregnant; therefore, Bynum did not tell her mother about the pregnancy. However, Bynum told friends, her attorneys, and her priest about the pregnancy and of her intent to put the child up for adoption when it was born.
On March 27, 2015, when Bynum was more than thirty weeks pregnant, she traveled to a hotel in Little Rock and met her friends, Andrea Hicks and Karen Collins (the person whom she wanted to adopt her baby), the next day. Driving to Little Rock, Bynum ingested 44 casings from the drug Arthrotec, which contained the drug Misoprostol ; she believed the Misoprostol would induce labor. Bynum's reasoning was it was becoming more difficult to lie all the time, she was getting larger, she was becoming attached to the baby, and she was concerned she would not be able to give the baby up if she carried it much longer. She claimed she was not trying to hurt the baby but was just trying to safely deliver it. Her plan was for Collins to take the baby to Children's Hospital after delivery; however, Bynum did not go into labor while in Little Rock. She returned home to Monticello, where she ingested eight more Arthrotec casings. Then, on March 31, 2015, she learned from her attorneys, Sara Hartness and Sandra Bradshaw, that Collins would not be able to adopt her child due to domestic-abuse issues concerning her own children and her ex-husband; that information did not dissuade Bynum from pursuing other adoption alternatives with another family.
Bynum went into labor in the middle of the night on April 1, 2015, at her mother's mobile home. By herself, she delivered the fetus, which was still in its intact amniotic sac, in the bathroom after 3:00 a.m. She said although she called for her brother, who was sleeping in the living room, he did not answer, and she did not awaken any other person in the house. According to Bynum, the baby did not move or cry, and she concluded the baby was deceased. In her third interview with Deputy Tim Nichols of the Drew County Sheriff's Department, Bynum stated she placed the baby in plastic sacks, put the bundle on a towel, cleaned up the bathroom, and took the baby to her vehicle, where she placed it on the front seat. She admitted she took those actions to keep her mother from finding out about the birth. Bynum stated she would have left the fetal remains in the bathroom if she had "felt like getting kicked out of the house immediately"; further, she placed the baby in the front seat of her vehicle because her vehicle was parked in front of the house and her mother always went out the back door.
Bynum's recall of events was that she became lightheaded after placing the baby in her vehicle, and she knew she could not drive; so she went back inside and went back to bed. Her mother awakened her a little after 6:00 a.m. Bynum got T.B. dressed, and her mother took him to school. Bynum ate a bowl of cereal and texted Hartness, who advised her to go see a doctor. Bynum had to wait until 8:00 a.m., when the doctor's office opened, to make an appointment; she attempted to see two doctors, but was unable to secure an appointment for that day with either of them. In the meantime, Hartness called a funeral home and was advised to have Bynum take the fetal remains to the hospital. Bynum arrived at Drew Memorial Hospital at approximately 10:40 a.m. on April 1. The fetal remains were subsequently examined by a medical examiner at the Arkansas State Crime Lab, where it was determined that the fetus was stillborn.
Sufficiency of the Evidence
On appeal, a motion for directed verdict is treated as a challenge to the sufficiency of the evidence. Stearns v. State , 2017 Ark. App. 472, 529 S.W.3d 654. Our court views the evidence in the light most favorable to the State and affirms if there is substantial evidence to support the verdict; only evidence supporting the verdict will be considered. Id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Kauffeld v. State , 2017 Ark. App. 440, 528 S.W.3d 302. Our court does not weigh the evidence presented at trial or assess the credibility of the witnesses, as those are matters for the fact-finder. Id. The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Mercouri v. State , 2016 Ark. 37, 480 S.W.3d 864. When reviewing a sufficiency-of-the-evidence challenge, appellate courts consider evidence both properly and improperly admitted. Means v. State , 2015 Ark. App. 643, 476 S.W.3d 168.
Arkansas Code Annotated section 5-26-203(a) (Repl. 2013) provides that a person commits the offense of concealing birth "if he or she hides the corpse of a newborn child with purpose to conceal the fact of the child's birth or to prevent a determination of whether the child was born alive."
Bynum argues Arkansas Code Annotated section 5-26-203(a) cannot apply to the facts of this case because the statute "does not criminalize a woman's choice to withhold the fact of pregnancy or a stillbirth from her own mother," and the State "presented no proof of hiding or prevention of the determination of whether there was a live birth." Bynum argues she did not conceal the delivery of her stillborn child, as she disclosed the fact she had delivered the child by contacting her attorney via text, seeking medical assistance, and taking the fetal remains to the hospital within hours after the delivery, thereby facilitating the determination that it was a stillbirth. Bynum contends this statute seeks to punish people who seek to permanently conceal a birth, not those who do not immediately tell their mothers about a stillbirth. She alleges that section 5-26-203(a) does not include a requirement to report a stillbirth, much less prescribe a time limit for doing so.
We hold that sufficient evidence supports Bynum's conviction under the statute. To support a conviction under this statute, the State must prove that a person hid a newborn's corpse with purpose (1) to conceal the fact of the child's birth; or (2) to prevent a determination of whether the child was born alive. One's intent or purpose at the time of an offense, being a state of mind, can seldom be positively known by others. Turner v. State , 2018 Ark. App. 5, 538 S.W.3d 227. Since intent cannot ordinarily be proved by direct evidence, jurors are allowed to draw on their common knowledge and experience to infer intent from the circumstances. Id. Because of the difficulty in ascertaining a person's intent, a presumption exists that a person intends the natural and probable consequences of his or her acts. Id.
Here, Bynum admitted she hid her stillborn child from her mother when she wrapped the child in plastic sacks, laid the bundle on a towel, placed it in the front seat of her vehicle, and locked the car. Bynum testified she knew her mother would not see the stillborn child because her mother left the house through the back door, not the front door, and Bynum's vehicle was parked in front of the house. The statute does not specify how long a newborn's corpse must be concealed to be found guilty of this offense, nor does it provide for the prospect that a person can conceal a birth by hiding the corpse temporarily but then can be exempt from the statute's dictates if he or she reveals the birth to a person a few hours later.
Viewing the evidence in the light most favorable to the State, as we must, we hold that the jury, as the finder of fact and the assessor of witness credibility, could, on the evidence presented, determine that Bynum purposely concealed the fact of the child's birth when she hid the corpse of her stillborn child in her vehicle, thus committing the offense of concealing birth. Therefore, we affirm on this point.
Constitutional Arguments (Void for Vagueness)
In her motion to dismiss, Bynum argued Arkansas Code Annotated section 5-26-203 is void for vagueness because "it lacks ascertainable standards of guilt such that persons of average intelligence must necessarily guess at its meaning and differ as to its application." (citing Booker v. State , 335 Ark. 316, 984 S.W.2d 16 (1998) ). She argues a person of reasonable intelligence "could not have known that experiencing a stillbirth at home at 3 a.m. and not telling her mother, but telling her lawyer, physicians, and medical authorities and bringing the unaltered fetal remains to a hospital within eight hours constitutes a crime." Bynum further contends the statute is vague because it encroaches upon a defendant's fundamental constitutional privacy rights and infringes on a defendant's due-process rights to liberty and privacy under the Fourteenth Amendment.
Preclusion. First, we must determine if Bynum can make a constitutional argument on appeal. The State argues Bynum cannot raise a challenge regarding the constitutionality of section 5-26-203 because she failed to notify the Attorney General of her intent to mount a constitutional challenge. Arkansas Code Annotated section 16-111-111 (Repl. 2016) (formerly codified at Arkansas Code Annotated section 16-111-106 ), provides, "When declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding.... [I]f [a] statute is alleged to be unconstitutional, the Attorney General of the State shall also be served with a copy of the proceeding and be entitled to be heard." The purpose of notifying the Attorney General of constitutional attacks on statutes is to prevent a statute from being declared unconstitutional in a proceeding that might not be a complete and fully adversarial adjudication. In re Guardianship of A.M. , 2012 Ark. 278, 2012 WL 2356492. We disagree with the State's argument that Bynum's arguments regarding the constitutionality of section 5-26-203, if preserved, cannot be heard for failure to notify the Attorney General. The cases cited by the State in support of this contention are civil matters, not criminal matters. In a criminal trial, the prosecutor, who is the person who determines what criminal charges to bring against a defendant, is necessarily a party to the matter and is available to provide a complete and fully adversarial adjudication of the matter of the constitutionality of a criminal statute. As the State was a party to the proceedings and had the opportunity to fully defend against the constitutional challenge, we hold the State's preclusion argument must fail.
Encroachment. Even though Bynum is not precluded from making constitutional arguments on appeal, we nevertheless hold that her arguments that the statute is vague due to encroachment on a defendant's privacy rights and is a violation of due-process rights to liberty and privacy under the Fourteenth Amendment are not preserved for our review. These arguments were mentioned in passing to the circuit court; no substantial argument was presented. In criminal cases, issues raised, including constitutional issues, must be presented to the circuit court to preserve them for appeal; the circuit court must have the benefit of the development of the law by the parties to adequately rule on the issues. Gooch v. State , 2015 Ark. 227, 463 S.W.3d 296. We will not consider an argument raised for the first time on appeal or that is fully developed for the first time on appeal. Id. Furthermore, a party cannot change his or her grounds for an objection or motion on appeal but is bound by the scope of arguments made at trial. Id.
Fair Notice. Bynum next argues that finding the concealing-birth statute to be constitutional is an impermissible judicial expansion of the law and makes the statute too vague to give any pregnant woman and newly delivered mother clear notice of what constitutes concealment of birth. While this argument was preserved for appellate review, we cannot agree with Bynum's contention.
There is a presumption of validity attending every consideration of a statute's constitutionality that requires the incompatibility between it and the constitution to be clear before the statute is held to be unconstitutional; if possible, the appellate courts will construe a statute so that it is constitutional. Anderson v. State , 2017 Ark. 357, 533 S.W.3d 64. Any doubt as to the constitutionality of a statute must be resolved in favor of its constitutionality, and the heavy burden of demonstrating the unconstitutionality is on the one attacking the statute. Id. As statutes "are presumed to be framed in accordance with the Constitution, they should not be held invalid for repugnance thereto unless such conflict is clear and unmistakable." Bowker v. State , 363 Ark. 345, 355, 214 S.W.3d 243, 249 (2005). "Invalidating a statute on its face is, manifestly, strong medicine that has been employed sparingly and only as a last resort." Anderson , 2017 Ark. 357, at 3, 533 S.W.3d at 67.
A law is unconstitutionally vague under due-process standards if it does not give a person of ordinary intelligence fair notice of what is prohibited, and it is so vague and standardless that it allows for arbitrary and discriminatory enforcement. Bowker, supra. The constitutionality of a statutory provision being attacked as void for vagueness is determined by the statute's applicability to the facts at issue. Id. When challenging the constitutionality of a statute on grounds of vagueness, the person challenging the statute must be one of the "entrapped innocent" who has not received fair warning; if, by his or her action, that individual clearly falls within the conduct proscribed by the statute, he cannot be heard to complain. Id.
Concealment. A person conceals a birth if the corpse of a newborn child is hidden for the purpose of either concealing the fact of the child's birth or preventing a determination of whether the child was born alive. The portion of the statute at play in this case is whether the child was hidden to conceal the child's birth. Bynum argues she could not have known that experiencing a stillbirth at home at 3 a.m. and not telling her mother, but telling her attorney, physicians, and medical authorities later in the morning and taking the fetal remains to a hospital eight hours later constitutes a crime. Bynum further argues that the statute was impermissibly expanded by the circuit court from a statute prohibiting an intentional action-concealing-to effectively mandating specific actions-reporting within a time frame. We cannot agree.
There is no question Bynum hid the stillborn fetus by placing it in her vehicle, where only she knew of it. Furthermore, as discussed above, the jury was tasked, as the finder of fact, to decide why Bynum had placed the stillborn fetus in her vehicle, and the jury determined it was to conceal the fact of the birth. This statute does not provide for any exceptions, including a "grace period" for concealment, nor does it require the concealment be permanent. A jury could determine that the offense was committed when Bynum hid the fetus in her vehicle. While harsh, this statute is clear enough to survive Bynum's constitutional challenge. Bynum cannot, in other words, successfully claim to be an "entrapped innocent," as her actions fell within the conduct proscribed by the statute. We affirm on this point.
Evidentiary Issues
Bynum next argues the trial court abused its discretion by allowing discussion of abortion, Bynum's abortion history, and evidence that Bynum had ingested medication prior to giving birth. We agree that the trial court abused its discretion in allowing this information to be presented to the jury; therefore, we reverse and remand on this issue.
A circuit court has broad discretion in evidentiary rulings, and the appellate courts will not reverse an evidentiary ruling absent an abuse of that discretion. Jefferson v. State , 2017 Ark. App. 536, 532 S.W.3d 593. Abuse of discretion is a high threshold that does not simply require error in the circuit court's decision but requires the circuit court act improvidently, thoughtlessly, or without due consideration. Id. Furthermore, we will not reverse absent a showing of prejudice, as prejudice is not presumed. Id.
Bynum filed a motion in limine on August 10, 2015, seeking to prohibit the State from referencing or introducing evidence she had ingested pharmaceutical substances prior to her delivery of the stillborn fetus and to prevent any mention of abortion. She argued there was no contention pharmaceutical drugs had caused the stillbirth; therefore, evidence of such ingestion was not probative of any element of the offense charged and was therefore not relevant. She further argued that even if there was some relevance, prejudice would outweigh any probative value. The State opposed the motion, arguing her plan to achieve concealment was to take the labor-inducing drugs to induce premature delivery in secret, and such actions were proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The State claimed it was entitled to present evidence that explained the act, provided a motive for acting, or illustrated the accused's state of mind. After a hearing on the motion on February 16, 2016, the circuit court denied Bynum's motion, holding that the State bore the burden of showing the purpose to conceal, and proof of a plan or motive was helpful and made the motive or plan admissible.
Relevant evidence is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would without the evidence." Ark. R. Evid. 401. Rule 402 of the Arkansas Rules of Evidence provides, "All relevant evidence is admissible, except as otherwise provided by statute or by these rules or by other rules applicable in the courts of this State. Evidence which is not relevant is not admissible." Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ark. R. Evid. 403. "Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Ark. R. Evid. 404(b).
Bynum makes a passing argument that constitutional due process guarantees "fundamental fairness," which the State argues is not preserved for appellate review because it was not made below. The State is correct; no constitutional argument was made to the circuit court. Appellate courts will not consider an issue raised for the first time on appeal. Gooch, supra.
The State argues that Bynum failed to object to the admission of the three recorded statements she gave to the sheriff's department, and that this court should not address her expanded arguments that are raised for the first time on appeal. We do not agree with the State's assertion. Bynum made a motion in limine to exclude evidence of her ingestion of the pharmaceutical substances prior to delivery and to exclude any discussion of abortion. The circuit court denied her motion. Therefore, Bynum has properly preserved this issue for appellate review.
The State argues the circuit court properly admitted evidence of abortion, Bynum's Arthrotec consumption, and her abortion history under Rule 404(b) of the Arkansas Rules of Evidence because, even though it did not speak directly to an element of the charges against her, it was relevant to demonstrate proof of her motive to induce labor through abortion-related drugs and then conceal the birth. Bynum counters that the evidence was not relevant and served only to support the State's theory that she had intended to have an abortion rather than an early delivery. She further argues such evidence inflamed the jurors' passions and encouraged them to deliver a guilty verdict in four minutes on the improper basis of her abortion history and ingestion of Arthrotec.
We find merit in Bynum's argument and hold that the circuit court abused its discretion in admitting this evidence. The elements of the offense of concealing birth that must be proved by the State are that the corpse of a newborn child is hidden with purpose (1) to conceal the fact of the child's birth or (2) to prevent a determination of whether the child was born alive. It is undisputed that the child was not born alive. Neither whether Bynum had taken pharmaceutical drugs prior to delivery nor any evidence of abortions (or the number of them) she had previously undergone is relevant to the charge that she had committed the offense of concealing birth; they did not tend to make it more or less probable Bynum had hidden her newborn's corpse with purpose to conceal the birth. Even if they could be deemed relevant, their probative value was substantially outweighed by the danger of unfair prejudice. No evidence was presented to show Bynum's ingestion of Arthrotec was the reason the child was stillborn, and rightly so, as Arkansas Code Annotated section 5-61-102(c) (Repl. 2016), the statutory provision addressing unlawful abortion, provides, "Nothing in this section shall be construed to allow the charging or conviction of a woman with any criminal offense in the death of her own unborn child in utero." Therefore, Bynum could not be charged with, or convicted of, a criminal offense in the death of her stillborn child; yet the State was allowed-through the introduction of the evidence of Bynum's prior abortion history and that she had taken medication prior to delivery of her stillborn child that might induce early labor-to imply Bynum's "[M]otive or plan" was to have another abortion. Bynum's attorney rhetorically asked at oral argument, "motive or plan to do what?" The only evidence of plan or motive was that Bynum intended to have her baby adopted, that she had taken substantial steps to do just that by contacting an adoption attorney, that she was attempting to have one of her friends adopt the child, and when that was not possible, that she pursued alternative adoptive placements. Bynum was clearly prejudiced by the introduction of this irrelevant evidence, as shown by the four-minute verdict and maximum prison sentence allowed by law.
Purported Admission During Pretrial Competency Examination
In her last argument, Bynum contends the circuit court abused its discretion in allowing her purported admission during a pretrial competency exam, when competency was not an issue at trial. Prior to trial, Bynum's defense counsel requested an evaluation of Bynum's mental competence at the time of her alleged conduct, and the circuit court ordered a competency exam. Dr. Myeong Kim performed the mental evaluation, determining Bynum was competent at the time of the offense and was competent to stand trial. Dr. Kim noted in his report that Bynum was advised of the nature and purpose of the exam, the exam was voluntary and not confidential, a report would be made to the circuit court, and the examiner might be required to testify. Having been apprised of these parameters, Bynum agreed to be interviewed. Over Bynum's objection, Dr. Kim was called as a witness for the State at trial, and his testimony was that Bynum had told him she was guilty of concealing birth but not guilty of abusing a corpse. Bynum argues it was error for that statement to be admitted.
A circuit court's decision to admit expert testimony is reviewed for an abuse of discretion. Miller v. State , 2010 Ark. 1, 362 S.W.3d 264. To show that a circuit court abused its discretion, it must be established the circuit court acted improvidently, thoughtlessly, or without due consideration, thereby causing prejudice. Id.
Bynum argues that even though there was no issue raised at trial regarding her competency, the circuit court nevertheless, over her objection, allowed Dr. Kim to testify about statements she allegedly made during the competency exam. Dr. Kim was declared to be an expert in the field of forensic psychological examinations. He testified to, and included in his report, his recollection that Bynum told him during her examination that she was guilty of concealing birth but not guilty of abusing a corpse.
Bynum argues admission of this statement violated her federal constitutional rights to due process and against self-incrimination. In support of her argument, Bynum cites Porta v. State , 2013 Ark. App. 402, 428 S.W.3d 585, in which our court held it was error for the circuit court to allow a forensic psychologist to testify about incriminating statements made by Porta during the mental-health examination during the State's case-in-chief because allowing the incriminating statements placed Porta in a situation that required him to sacrifice one constitutional right (exercising his Fifth Amendment right to not incriminate himself) in order to claim another (his due-process right to seek out available defenses).
We cannot reach the merits of Bynum's constitutional arguments because these specific arguments were never made to the circuit court. Even constitutional arguments must be first raised in the circuit court to preserve them for appellate review. Gooch, supra.
Bynum next argues that allowing her statement to Dr. Kim that she had committed the offense of concealing birth violated the physician-patient privilege under Rule 503 of the Arkansas Rules of Evidence. Arkansas Code Annotated section 5-2-307 provides that a statement made by a person during an examination is admissible as evidence only to the extent permitted by the Arkansas Rules of Evidence and if the statement is constitutionally admissible.
Arkansas Rule of Evidence Rule 503(d)(2) provides, "If the court orders an examination of the physical, mental, or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise."
Like her constitutional arguments, Bynum has raised the violation of evidentiary rules for the first time on appeal. Because she did not make this argument to the circuit court, it is not preserved for appellate review. Gooch, supra.
Bynum's last argument is that Dr. Kim's testimony regarding her statements made during her competency exam amount to a legal conclusion. We do not agree. A legal conclusion is opinion testimony that "tells the jury what to do." Marts v. State , 332 Ark. 628, 642, 968 S.W.2d 41, 48 (1998). As the State points out, Dr. Kim did not offer any opinion testimony about whether Bynum was guilty of concealing birth; he merely reported that Bynum made the statement during her examination that she was guilty of concealing birth. He did not testify whether he believed Bynum was guilty of concealing birth. Dr. Kim provided a factual account of Bynum's admission; this recitation alone did not make the statement become Dr. Kim's opinion. It was not an inadmissible legal conclusion. We affirm on this point.
Reversed and remanded.
Gruber, C.J., agree.
Harrison, J., concurs.
The State cross-appealed the circuit court's grant of Bynum's directed-verdict motion for this offense but makes no argument on appeal regarding this issue. Therefore, the State has abandoned its cross-appeal.
Bynum had been pregnant with twins, but one fetus died earlier in the pregnancy, at an estimated gestational age of 16 weeks, while the second fetus died at an estimated gestational age of 33 weeks. The fact there were two fetuses was unknown to Bynum until the fetal remains were examined by a medical examiner. While there were two fetuses, Bynum was charged with only one count of concealing birth, and for the purposes of this opinion, we will refer to a single fetus.
The evidence shows medical personnel were able to determine that the child was stillborn; therefore, the second purpose for concealing the birth-to prevent the determination of whether the child was born alive-does not apply in this case. | [
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MIKE MURPHY, Judge
Appellant Walter Farris appeals from the April 20, 2017 opinion of the Arkansas Workers' Compensation Commission (Commission) that found Farris's claim for additional benefits was barred by the statute of limitations. The Commission's opinion affirmed the opinion of the administrative law judge (ALJ). Farris's sole point on appeal is that his claim for additional benefits is not time-barred. We agree and reverse and remand
Farris was injured on the job on May 12, 2014, when a crane fell on him. His employer, Express Services, Inc., initially paid benefits for the injury claim. Farris received medical treatment until he was released to full duty on April 28, 2015.
Farris filed a Form AR-C for additional benefits on May 5, 2016. He incorrectly named Great Dane Trailers as the employer because he mistakenly believed that he worked for Great Dane Trailers since that was the physical location of his employment. In fact, he worked for Express Services, Inc., a temporary-employment agency, but was assigned to Great Dane Trailers. Once he realized the mistake, he filed an amended form AR-C on May 13, 2016. The Commission affirmed and adopted the ALJ's decision that Farris's claim for additional benefits was barred by the statute of limitations. Farris timely appealed.
The only question on appeal is whether Farris's claim for additional benefits is time-barred because he mistakenly named the wrong employer in his otherwise timely filed claim.
Arkansas Code Annotated section 11-9-702(b)(1) governs the time for filing a claim for additional compensation:
In cases in which any compensation, including disability or medical, has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the commission within one (1) year from the date of the last payment of compensation or two (2) years from the date of the injury, whichever is greater.
Thus, absent some action that tolled the statute of limitations, Farris's claim for additional compensation had to be filed within one year of April 28, 2015 (the date of the last receipt of medical benefits) or two years from May 12, 2014 (the date of injury). He filed the form AR-C for additional benefits naming the incorrect employer (Great Dane Trailers) on May 5, 2016. He filed the amended form AR-C naming the correct employer (Express Services, Inc.) on May 13, 2016, one day after the statute of limitations had run.
In Dillard v. Benton County Sheriff's Office , 87 Ark. App. 379, 192 S.W.3d 287 (2004), our court considered whether a form that was timely filed but contained a mistake tolled the statute. The mistake in Dillard involved a claimant checking the wrong boxes to indicate the claim was for initial benefits when it should have indicated it was for additional benefits. Our court noted that it was obvious that the claimant intended to file a claim for additional benefits and that "despite the fact that the wrong boxes were checked ... because it was timely filed, [the claim] tolls the statute of limitations." Id.
The employer argues that it was Farris's burden to file the form correctly and that he should have known his employer was Express Services, Inc., not Great Dane Trailers, because he submitted his timesheets to Express Services, Inc., and his paychecks were consistently issued by Express Services, Inc. However, our court has held that the determinative factor is the timeliness of filing of the form and that minor mistakes such as these will not subject the claim to dismissal as long as the initial form was filed before the date when the statute runs. Id.
While Dillard focuses solely on an incorrect checkmark for initial benefits, the underpinning of that case is that a "failure to technically comply with the 'call' of the form" should not be fatal to a claim when it is clear what was intended. Id. at 384, 192 S.W.3d at 291. Our court in Dillard emphasized that mistakes in a claim for additional benefits, especially given the fact that the employer had previously paid benefits to that employee, should not become a case of "form over substance" rendering a claim time-barred. Id.
Likewise, Farris's mistake in his claim form for additional benefits, especially given that Express Services, Inc., had previously paid benefits to him, is a mistake as to form and not as to substance. We hold that the statute of limitations was tolled.
Reversed and remanded.
VIRDEN , HARRISON , WHITEAKER , and BROWN , JJ., agree.
Gruber, C.J., and Gladwin, Klappenbach, and Glover, JJ., dissent.
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JOHN DAN KEMP, Chief Justice
This is an appeal from the Lincoln County Circuit Court's denial of a pro se petition for a writ of habeas corpus filed under Act 1780 of 2001 Acts of Arkansas, as amended by Act 2250 of 2005 and codified as Arkansas Code Annotated sections 16-112-201 to -208 (Repl. 2016), and for a writ of audita querela. Appellant Jessie Hill's pro se petition sought postconviction relief in connection with his conviction for capital murder in Grant County. Pending before this court are Hill's pro se motions for transcript, for extension of time to file brief, for rule-on-clerk clarification and belated-appeal clarification, and pro se petition for writ of mandamus.
An appeal of the denial of postconviction relief, including an appeal from an order denying a petition for writ of habeas corpus under Act 1780, will not be permitted to go forward when it is clear that the appellant could not prevail. Marshall v. State , 2017 Ark. 208, 521 S.W.3d 456. A writ of audita querela is indistinguishable from a writ of error coram nobis in that it permits a defendant in some instances to obtain relief based on allegations of newly discovered evidence following the rendition of a judgment. See Pitts v. State , 2016 Ark. 345, 501 S.W.3d 803 ; 7A C.J.S. Audita Querela § 2 (2016) (the difference between coram nobis and audita querela is largely one of timing, not substance). Hill's petition for audita querela is properly treated as one for a writ of error coram nobis. An appeal from the denial of coram nobis relief will similarly not be permitted to go forward when it is clearly without merit. Because it is clear from a review of the record that the circuit court did not have jurisdiction to address the claims for postconviction relief under either of the two interchangeable remedies, we dismiss the appeal, and Hill's multiple motions and his petition are therefore moot.
Hill is incarcerated in the Arkansas Department of Correction pursuant to a judgment entered on September 18, 1995, in Grant County, which reflects a conviction for capital murder for which he was sentenced to life without parole. This court affirmed the judgment. Hill v. State , 325 Ark. 419, 931 S.W.2d 64 (1996). Hill subsequently filed two petitions in this court seeking permission to reinvest jurisdiction in the trial court to consider a petition for writ of error coram nobis with respect to his capital-murder conviction. Both petitions were denied. Hill v. State , 2017 Ark. 121, 516 S.W.3d 249, reh'g denied (May 4, 2017); Hill v. State , CR-96-270, 2008 WL 660322 (Ark. Mar. 13, 2008) (unpublished per curiam).
In the petition filed below, Hill argued that he was actually innocent and was entitled to habeas and audita querela relief based on a United States Supreme Court ruling in Bailey v. United States , 516 U.S. 137, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which held that mere possession of a weapon is insufficient proof to sustain a conviction for use of a deadly weapon pursuant to a federal criminal statute applicable to drug trafficking. Hill alleged that the holding in Bailey represented a new constitutional rule that is retroactively applicable to his case and entitles him to scientific testing of items found at the crime scene, including a marble rolling pin, to establish that Hill did not actively "use" the rolling pin to murder the victim. Hill's reliance on Bailey is misplaced. Bailey construes the meaning of "use" in a federal criminal statute; it does not purport to be anything other than a statutory decision and does not represent a new rule of constitutional law. See Gray-Bey v. United States , 209 F.3d 986 (7th Cir. 2000). In any event, the circuit court denied Hill's petition based on the lack of jurisdiction to hear either claim.
I. Petition for Writ of Habeas Corpus
A circuit court's decision on a petition for writ of habeas corpus will be upheld unless it is clearly erroneous. Lohbauer v. Kelley , 2018 Ark. 26. A decision is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been made. Id.
Any petition for writ of habeas corpus to effect the release of a prisoner is properly addressed to the circuit court in which the prisoner is held in custody, unless the petition is filed pursuant to Act 1780. Perry v. State , 2018 Ark. 14, 535 S.W.3d 264. A petition for a writ of habeas corpus alleging entitlement to new scientific testing must be addressed to the court that entered the conviction. See Ark. Code Ann. § 16-112-201(a). The circuit court did not clearly err when it concluded that it did not have jurisdiction to address Hill's claim for habeas relief pursuant to Act 1780, as Hill's conviction was entered in Grant County and not in Lincoln County.
II. Petition for Writ of Error Coram Nobis
The standard of review for the denial of a petition for writ of error coram nobis is whether the trial court abused its discretion in granting or denying the writ. Ramirez v. State , 2018 Ark. 32, 536 S.W.3d 614. An abuse of discretion happens when the trial court acts arbitrarily or groundlessly. Id. The trial court's findings of fact on which it bases its decision to grant or deny the petition for writ of error coram nobis will not be reversed on appeal unless they are clearly erroneous or clearly against the preponderance of the evidence. Id. There is no abuse of discretion in the denial of error coram nobis relief when the claims in the petition are groundless. Id.
A petition for a writ of error coram nobis must also be addressed to the trial court where the conviction was entered, and the trial court cannot entertain a petition for writ of error coram nobis after a judgment has been affirmed on appeal unless this court grants permission. Carner v. State , 2018 Ark. 20, 535 S.W.3d 634. As set forth above, Hill's Grant County conviction for capital murder was affirmed on appeal by this court. The Lincoln County Circuit Court did not abuse its discretion when it found that it did not have the authority to address Hill's petition for audita querela , which is properly treated as a petition for writ of error coram nobis, as such petitions must be filed in the trial court if this court grants permission to do so.
Appeal dismissed; motions and petition moot.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
Mr. Hill has not yet perfected his appeal, so this court's jurisdiction is limited to considering is the various motions that he has filed. Accordingly, while it is permissible for this court to dismiss Mr. Hill's appeal because he did not timely file his brief, it is most certainly not proper to dismiss his appeal on the merits and declare the motions "moot."
Further, the majority's rationale for deciding Mr. Hill's appeal on the merits-that it is clear he cannot prevail-is not beyond question. For example, the majority affirms the circuit court's dismissal of Mr. Hill's petition for scientific testing under Act 1780, codified at Arkansas Code Annotated §§ 16-112-201 to -208 (Repl. 2006), approving the circuit court's finding that the Act required that Mr. Hill file his petition in the court in which he was convicted. However, that requirement is not one of subject-matter jurisdiction but of venue. Venue is merely an affirmative defense that must either be raised in a responsive pleading or it is deemed to be waived. Ark. Rule Civ. P. 12(b)(1). I have studied the record and can find no responsive pleading raising that affirmative defense. It appears that the circuit judge raised it on her own motion, which is improper.
It may be true that Mr. Hill has frequently petitioned for postconviction relief. However, ignoring Mr. Hill's motions to purportedly decide his appeal on the merits does not promote judicial economy. The majority has drafted a full, signed judicial opinion when our rules call for disposition of simple motions by docket entry. Justice demands that this court not disregard Mr. Hill's constitutional rights to due process and access to the courts.
I dissent.
Hill was subsequently convicted of first-degree murder pursuant to a judgment of conviction entered in Ouachita County and was sentenced as a habitual offender to 720 months' imprisonment to be served consecutively to the life sentence. No appeal was taken from the Ouachita County judgment, as Hill's pro se motion to file a belated appeal was denied. Hill v. State , CR-96-710, 1996 WL 651139 (Ark. Nov. 4, 1996) (unpublished per curiam).
Hill makes reference to Arkansas Code Annotated sections 16-112-103, 16-112-111, 16-123-118, and 16-112-122 in the context of his argument for the retroactive application of the Bailey decision and his entitlement to scientific testing. Hill did not allege that the trial court lacked subject-matter jurisdiction or that the judgment order imposed an illegal sentence that was invalid on its face. Perry , 2018 Ark. 14, 535 S.W.3d 264. | [
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KENNETH S. HIXSON, Judge
Appellant Niesha Moore appeals after the Hot Spring County Circuit Court filed an order terminating her parental rights to B.S. (DOB 12-18-2016). Appellant's sole argument on appeal is that termination of her parental rights was not in B.S.'s best interest. We affirm.
I. Facts
On February 8, 2017, the Arkansas Department of Human Services (DHS) filed a petition for ex parte emergency custody and dependency-neglect of B.S. In the affidavit attached to the petition, DHS stated that it was reported that both appellant and B.S. tested positive for cocaine at B.S.'s birth. A plan of safe care was put in place, and a team attempted to work with appellant to keep B.S. safe in her home. However, appellant was subsequently arrested and placed in jail on January 3, 2017, on unrelated charges. DHS reported that appellant had left B.S. in the care of appellant's alleged sister and brother-in-law, Starkeisha and Jimmy Fricks. After appellant's release on February 1, 2017, she returned to the Fricks's home. The next day, DHS made a home visit, and appellant admitted using cocaine and drinking gin in the presence of B.S. She additionally tested positive for cocaine and methamphetamine. Thereafter, DHS placed a seventy-two-hour hold on B.S. due to the allegations of neglect, drug abuse, and parental unfitness. The trial court granted the petition, finding that probable cause existed for the removal. The trial court found that there was probable cause to believe that B.S. was dependent-neglected and that it was contrary to the welfare of B.S. to remain with appellant.
Subsequently, a probable-cause hearing was held on February 14, 2017, and the trial court filed a probable-cause order. At the hearing, appellant requested permission to enter drug treatment, and the trial court ordered DHS to expedite drug treatment. DHS filed a court report on March 31, 2017. In that report, DHS stated that B.S. had been placed in a provisional-foster-home placement with her maternal aunt. It also stated that appellant had been arrested in Saline County on a failure-to-appear charge and that appellant still had several pending charges in Malvern, Arkansas. Appellant further tested positive for cocaine on March 9, 2017, which was later confirmed by a lab test. Finally, the report noted that appellant had completed her drug-and-alcohol assessment, which had recommended that she receive inpatient drug treatment.
At the May 9, 2017 adjudication hearing, appellant stipulated that B.S. was dependent-neglected, and as such, the trial court found B.S. dependent-neglected in its order. The goal was set as reunification. A review hearing was held on August 8, 2017. Appellant was not present as she was incarcerated at that time, but her attorney appeared on her behalf. Additionally, multiple relatives appeared, and the trial court ordered DHS to conduct a home study on three of B.S.'s relatives: Dorothea Roberson, maternal great-grandmother; Patricia Moore, maternal grandmother; and Angela McClendon, paternal grandmother. The trial court further found that appellant had not complied with the case plan or demonstrated progress. The trial court noted that at that time, appellant was incarcerated for convictions of battery and aggravated assault that occurred in May 2017.
The next review hearing took place on October 24, 2017. After that hearing, the trial court found that appellant had partially complied with the case plan in that she had completed parenting and anger-management classes while incarcerated in the Arkansas Department of Correction. Dorothea Roberson, Patricia Moore, and Angela McClendon were granted visitation on Fridays from 9:00 a.m. to 10:00 a.m. at the Hot Spring County DHS office. The trial court further found that DHS had denied the home studies on Dorothea Roberson and Patricia Moore and that B.S. should not be placed in either home. Angela McClendon failed to return the paperwork to be considered for placement.
After the February 27, 2018 permanency-planning hearing, the trial court changed the goal to adoption and authorized DHS to file a petition for termination of parental rights. DHS filed a petition for termination of parental rights on March 15, 2018. DHS alleged four grounds for termination under Arkansas Code Annotated section 9-27-341(b)(3)(B) (Supp. 2017) that were applicable to appellant, including the failure-to-remedy, subsequent-factors, criminal-sentence, and aggravated-circumstances grounds.
At the termination hearing, appellant testified that she was currently incarcerated for violent offenses unrelated to her history of drug abuse and that her sentence was for a total of five years. Although she testified that she thought she would be released sooner, she stated the earliest she could be released was a year from then. She admitted that she had completed inpatient treatment during the pendency of the case but had immediately relapsed and used cocaine. Additionally, appellant admitted that she had not found gainful employment before her most recent incarceration. She instead stated that she had received Social Security benefits and has bipolar disorder. However, appellant explained that she planned to "get [her] life together and be there for B.S." after her release. She stated that in the meantime, she desired to sign a guardianship to her grandmother, Dorothea Roberson, rather than having B.S. continue to live in foster care with her best friend and B.S.'s godmother, Starkeisha Fricks. Finally, appellant testified that she had lied to DHS about Ms. Fricks being her sister and further testified that Ms. Fricks is not related to her at all.
Evidence was introduced to show that on March 20, 2017, appellant had pleaded guilty to second-degree battery and was sentenced to sixty months' probation. However, her probation was subsequently revoked, and on July 17, 2017, she was sentenced to serve forty-eight months' incarceration. In a separate case, appellant pleaded guilty to aggravated assault and second-degree battery and was sentenced on June 13, 2017, to serve sixty months' incarceration. In yet another case, appellant pleaded guilty to second-degree battery and possession of drug paraphernalia to ingest, inhale, etc., and was sentenced on October 30, 2017, to serve sixty months' incarceration.
Kaylen Diemer, the family-service worker assigned to the case, testified regarding the case history outlined above. Diemer detailed appellant's failure to comply with the recommendations after completing inpatient drug treatment, including maintaining sobriety for a period of a year, participating in NA meetings twice weekly, and finding gainful part-time employment. Further, Diemer testified that she recommended that appellant's parental rights be terminated due to her violent past, history of drug relapse, and incarceration. Diemer opined that the trial court should not continue to delay B.S.'s permanency and testified that B.S. was doing very well in her placement with Ms. Fricks. B.S. had spent most of her life in Ms. Fricks's home. Diemer stated that even if DHS had known that appellant and Ms. Fricks were not related, there was a possibility that Ms. Fricks still would have been approved as placement based on the prior care that Ms. Fricks had provided to B.S.
Regarding home studies, Diemer testified that DHS had denied the home studies completed on the homes of Dorothea Roberson and Patricia Moore. Patricia Moore's home was under construction, and Patricia Moore was living with Dorothea Roberson at that time. Moreover, during the home study conducted at Dorothea Roberson's home, Patricia Moore tested positive for illegal substances, and there were concerns about the amount of people living in the home and the space left for B.S. Diemer testified that B.S. was adoptable and that DHS would ask Ms. Fricks if she was willing to adopt B.S. after appellant's rights were terminated. Finally, Diemer stated that although the biological relatives had been offered visitation since October 24, 2017, they failed to exercise that visitation on at least fourteen occasions.
Ms. Fricks testified that she basically had taken care of B.S. since birth. She indicated that it was her desire to file a petition to adopt B.S. once parental rights were terminated because B.S. deserved permanency. Although she admitted that she is not appellant's sister and that there is not any proof that she is related to appellant, Ms. Fricks claimed that she "could possibly be a cousin."
Sandra Marfoglio-Hinton, an adoption specialist, testified that a data match identified 452 possible adoption matches for B.S. She opined that children like B.S. are highly adoptable and stated that she was aware that Ms. Fricks wanted to adopt B.S.
In the termination order, the trial court found by clear and convincing evidence that it was in B.S.'s best interest to terminate appellant's parental rights. It stated that it considered the likelihood that B.S. would be adopted and the potential harm to the health and safety of B.S. by returning the child to appellant. As to adoptability, the trial court found that B.S. was adoptable based on the "adoption data match and the foster parents, who have cared for the juvenile her entire life, desire to adopt the juvenile." As to potential harm, the trial court found that B.S. would be subjected to potential harm because of appellant's incarceration, but even if she was not incarcerated, her lifestyle, criminal history, and history of drug and alcohol abuse would subject B.S. to potential harm. Finally, the trial court found that all four alleged statutory grounds existed. This appeal followed.
II. Standard of Review
A trial court's order terminating parental rights must be based upon findings proved by clear and convincing evidence. Ark. Code Ann. § 9-27-341(b)(3). Clear and convincing evidence is defined as that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Posey v. Ark. Dep't of Health & Human Servs. , 370 Ark. 500, 262 S.W.3d 159 (2007). On appeal, the appellate court reviews termination-of-parental-rights cases de novo but will not reverse the trial court's ruling unless its findings are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, an appellate court gives due deference to the opportunity of the trial court to judge the credibility of witnesses. Id.
In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A)(i) & (ii). The order terminating parental rights must also be based on a showing of clear and convincing evidence as to one or more of the grounds for termination listed in section 9-27-341(b)(3)(B). However, only one ground must be proved to support termination. Reid v. Ark. Dep't of Human Servs. , 2011 Ark. 187, 380 S.W.3d 918.
The intent behind the termination-of-parental-rights statute is to provide permanency in a child's life when it is not possible to return the child to the family home because it is contrary to the child's health, safety, or welfare, and a return to the family home cannot be accomplished in a reasonable period of time as viewed from the child's perspective. Ark. Code Ann. § 9-27-341(a)(3). Even full compliance with the case plan is not determinative; the issue is whether the parent has become a stable, safe parent able to care for his or her child. Cobb v. Ark. Dep't of Human Servs. , 2017 Ark. App. 85, 512 S.W.3d 694. Moreover, a child's need for permanency and stability may override a parent's request for additional time to improve the parent's circumstances. Id. Finally, a parent's past behavior is often a good indicator of future behavior. Id.
III. Best Interest
Appellant's sole argument on appeal is that the trial court erred in terminating her parental rights because there was insufficient evidence that termination was in B.S.'s best interest. Appellant specifically argues that the trial court should have considered the preservation of B.S.'s relationship with her relatives and that this relationship weighed against termination. She explains that B.S. was placed with a relative, Ms. Fricks. Although appellant admits that the testimony at the termination hearing was that Ms. Fricks is unrelated or at best a cousin, she argues that the trial court found Ms. Fricks to be a relative in its permanency-planning order, which she has not appealed. Moreover, appellant argues that B.S. had enjoyed a relationship with other biological relatives and that the trial court failed to consider that impact in its termination decision. Appellant does not otherwise challenge the sufficiency of the evidence supporting the grounds for termination, nor does she challenge the trial court's findings regarding adoptability. Thus, we need not consider those issues. Yarbrough v. Ark. Dep't of Human Servs. , 2016 Ark. App. 429, 501 S.W.3d 839.
Appellant analogizes this case to three cases: Lively v. Arkansas Department of Human Services , 2015 Ark. App. 131, 456 S.W.3d 383 ; Cranford v. Arkansas Department of Human Services , 2011 Ark. App. 211, 378 S.W.3d 851 ; Caldwell v. Arkansas Department of Human Services , 2010 Ark. App. 102, 2010 WL 374432. However, the facts of those cases are inapposite, and appellant's reliance on them is misplaced.
Here, the record reveals that B.S. was in a foster-care placement with Ms. Fricks, who may or may not be related to her. Regardless of her alleged relative status, Ms. Fricks was a stable influence and had been B.S.'s foster parent for most of her young life. However, severing appellant's parental rights does not change that status. In fact, once appellant's rights are terminated, Ms. Fricks indicated that she desired to adopt B.S., and DHS indicated that it would pursue having Ms. Fricks adopt B.S. so that permanency could finally be achieved, which is the intent of the termination-of-parental-rights statute. See Ark. Code Ann. § 9-27-341(a)(3).
Appellant alleges that she "never presented a potential harm to B.S." In assessing the potential-harm factor, the court is not required to find that actual harm would ensue if the child were returned to the parent or to affirmatively identify a potential harm. Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, 502 S.W.3d 569. The potential-harm analysis is to be conducted in broad terms. Id. Past actions of a parent over a meaningful period of time are good indicators of what the future may hold. Id. Here, both appellant and B.S. tested positive for cocaine at B.S.'s birth. Additionally, despite receiving inpatient treatment, appellant relapsed and continued to use cocaine when she was not incarcerated. Moreover, appellant is and has been incarcerated for a substantial period of this newborn child's life and is unable to care for B.S. at this time. Clearly, stability and reasonable hope for reunification is lacking in this case. Although B.S. may have enjoyed a relationship with some of her relatives, but, as we have held, drug-related issues can support a court's finding of potential harm, even when a child is placed with a relative. Swangel v. Ark. Dep't of Human Servs. , 2018 Ark. App. 197, 547 S.W.3d 111 (citing White v. Ark. Dep't of Human Servs. , 2017 Ark. App. 529, at 6, 530 S.W.3d 402, 405 ). Because the trial court's best-interest determination is not clearly erroneous, we must affirm.
Affirmed.
Harrison and Murphy, JJ., agree.
The trial court also terminated the parental rights of Aaron Singleton, B.S.'s father. However, he is not a party to this appeal.
The spelling of Ms. Roberson's first name is inconsistent throughout our record on appeal.
Patricia Moore had previously filed petitions to intervene and for relative placement; however, the trial court did not rule on those petitions. | [
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BRANDON J. HARRISON, Judge
Jonathan Snow appeals his convictions for first-degree battery and first-degree endangering the welfare of a child. He argues that his convictions relied solely on circumstantial evidence and that the jury was forced to rely on speculation and conjecture. We reverse and dismiss the battery conviction but affirm the endangering-the-welfare-of-a-child conviction.
On 21 September 2016, Snow was charged with battery in the first degree and endangering the welfare of a minor in the first degree. The State alleged that Snow had abused his three-week-old infant, causing bruises, a broken clavicle, severe brain injuries, and seizures. Alyssia Kirby, the baby's mother, was also separately charged. At a jury trial in October 2017, Officer Jay Volkman with the Mountain Home Police Department testified that on 23 February 2016, he received a report from the child-abuse hotline via the Arkansas State Police Crimes Against Children Division. Volkman testified that he and Special Agent Becky Vacco questioned Snow and Kirby at their apartment on February 25. According to Volkman, Snow said he did not know how the injuries had happened, but Kirby did provide an explanation for how the injuries had happened. But after a hearsay objection, Volkman was not permitted to repeat what Kirby had said. Volkman also said that Kirby provided an explanation for the bruising on the baby's face, but he did not say what that explanation was. Snow told Volkman that the baby had begun having "fits" and that he did not realize that the baby was having seizures. Snow voluntarily showed Volkman videos that he had taken on his cell phone of the baby having several so-called "fits" and explained that he made the videos to later show to the doctor. Snow said he did not take the baby to the emergency room because he did not think it was serious and the baby did not have a fever. According to Snow, the baby had started having these "fits" on Saturday, February 20. Snow also stated that he and Kirby were the only people who had taken care of the baby since his birth, and he denied that either he or Kirby had hurt the baby.
On cross-examination, Volkman agreed that Kirby had spoken during the interviews much more than Snow and that Kirby had never indicated that Snow might have caused the injuries. Volkman also said that in addition to making the videos of the baby to show to the doctor at a later point, Snow also spoke to a friend about what he should do. Volkman acknowledged that Kirby had been charged as well and that it was a "possibility" that Snow had not committed the crimes. Volkman also testified that Kirby is ten years older than Snow, that she has five children, and that one of those children is in the custody of an aunt because of a drug charge.
Special Agent Vacco with the Arkansas State Police testified that "they," meaning Snow and Kirby, had no explanation for the broken clavicle, said that a seat-belt latch had fallen onto the baby's cheek and caused the bruise, and said that another child had dropped the baby on the bed. Snow also showed Vacco the recordings of the baby's seizures and consented to a search of his phone. On cross-examination, Vacco clarified that Kirby had done the majority of the talking and that she (Kirby) had provided the explanation about the seat-belt latch falling onto the baby's cheek. Vacco agreed that Snow had given no explanations for any of the injuries. She also agreed that both Snow and Kirby were charged in the matter and that, in her opinion, they were both responsible for the injuries.
Dr. Michael Adkins testified that he was the baby's attending physician after delivery (the baby was born on 27 January 2016). Dr. Adkins saw the baby when he was eight days old, on February 4, and he had no acute issues. On February 22, Kirby presented the baby for treatment, stating that he had jaundice and had not been eating well. Kirby did not mention any fits, bruising, respiratory problems, or other injuries. Dr. Adkins stated that when he saw the baby, he saw "essentially, a lifeless infant." Dr. Adkins testified that the baby had bruises on his head and around his eye and was in distress. Dr. Adkins examined the baby and noticed him "tremoring and likely seizing," so the doctor called an ambulance and the police. When Dr. Adkins asked Kirby about the injuries, she reported that the baby had been hit by a seat-belt buckle. And when asked why she did not seek medical attention sooner, she said, "I don't know." On cross-examination, Dr. Adkins testified that he did not know who or what had caused the baby's injuries.
Dr. Karen Farst testified that the baby was admitted to the pediatric intensive care unit at Arkansas Children's Hospital on 23 February 2016. She testified that the baby was in a "life-threatening and very critical condition" when he was admitted. She said that he had bruising on his face and appeared to be seizing. The baby was also dehydrated and was put on a breathing machine. Dr. Farst explained that medical testing showed that the baby had several areas of bleeding around his brain as well as injuries to the brain tissue. She said this type of trauma is most commonly caused by a significant contact or impact injury. She explained that his injuries resulted in dead brain tissue in a large part of his brain, that he has very delayed developmental skills, and that he has ongoing seizure problems. She could not say who had caused the injuries or precisely how they occurred, but she did state that if the baby had been given medical treatment sooner, the outcome would not have been as severe.
The State also called Joseph Elders, a friend of Snow's and Kirby's, who testified that he was in their home when the baby was around two weeks old and that he saw the baby experience what looked like a seizure and specifically saw the baby's eyes "shaking back and forth." He said that he told Kirby that it looked like a seizure, but she said that "all of her newborn babies did that because their eyes are just adjusting to the light." Elders said that Snow was not in the room when he and Kirby had this conversation.
The State also played excerpts from the videos taken on Snow's phone; in the videos, Snow repeatedly expressed concern over the baby's behavior and said that he had arranged for a friend to take them to the hospital if needed. At the close of the State's case, Snow moved for a directed verdict. On the battery charge, he argued that the State had failed to prove that he had caused the injuries; on the endangering charge, he argued that the State had failed to show that he had acted purposely to create a substantial risk of death or serious physical injury to a minor. The circuit court stated that it was a close case, "but based on circumstantial evidence I think enough has been put forward to get past a directed verdict." The defense rested without presenting additional evidence, and Snow renewed his directed-verdict motion, which was again denied. The jury found Snow guilty of both charges, and the court sentenced him to thirty-five years for battery and six years for endangering the welfare of a minor, to run consecutively. He now appeals his convictions.
A directed-verdict motion is a challenge to the sufficiency of the evidence. Holland v. State , 2017 Ark. App. 49, 510 S.W.3d 311. Our test for determining the sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial. Wells v. State , 2017 Ark. App. 174, 518 S.W.3d 106. Substantial evidence is evidence that would compel a conclusion one way or the other with reasonable certainty, without relying on mere speculation or conjecture. Henson v. State , 2014 Ark. App. 703, 450 S.W.3d 677. Circumstantial evidence may constitute substantial evidence to support a conviction if it excludes every other reasonable hypothesis other than the guilt of the accused. Holland, supra. Circumstantial evidence may not provide the sole basis for a criminal conviction if it can be reconciled with the theory that someone other than the defendant committed the crime. Henson, supra. Two equally reasonable conclusions as to what occurred merely give rise to a suspicion of guilt, which is not enough to support a conviction. Fudge v. State , 341 Ark. 759, 20 S.W.3d 315 (2000). Weighing the evidence, reconciling conflicts in testimony, and assessing credibility are all matters exclusively for the trier of fact. Holland, supra.
On appeal, Snow argues that his convictions relied solely on circumstantial evidence and that there was no direct evidence of who caused the baby's injuries. He also asserts that "if fault is attributed to the parents, then it is more likely that Alyssia (Kirby) Snow was the wrongdoer and not her husband, Jonathan." He notes that he was the one who memorialized the seizures on his phone and volunteered the videos to investigators, while Kirby had already lost custody of a child due to drug problems. Snow contends that the jury was forced to rely on speculation and conjecture to conclude that he committed these crimes and that the State failed to exclude the reasonable hypothesis that Kirby was the person who inflicted the injuries.
The State counters that the evidence at trial showed that the baby sustained life-threatening injuries while in the care of Snow and Kirby, that both parents denied that any major accidents had occurred that could have caused the injuries, and that Snow said that Kirby had not hurt the baby. The State asserts that the jury could have reasonably inferred that Snow caused the injuries "given the improbable explanations for the bruising, the fact that [Snow] avoided getting medical attention for [the baby], who was plainly injured and in distress, and [Snow's] bizarre videos that he volunteered to investigating officers but never showed to a doctor."
A person commits battery in the first degree if he or she knowingly causes serious physical injury to any person four years of age or younger under circumstances manifesting extreme indifference to the value of human life. Ark. Code Ann. § 5-13-201(a)(9) (Repl. 2013). Our case law makes clear that circumstantial evidence can be sufficient to support the conviction of battery of a child. See, e.g. , Reams v. State , 45 Ark. App. 7, 870 S.W.2d 404 (1994) ; Payne v. State , 21 Ark. App. 243, 731 S.W.2d 235 (1987). In Reams , this court affirmed the conviction of a mother for first-degree battery of her child, rejecting her argument that it was her live-in companion, and not she, who had severely abused her child. This court found that Reams's improbable statements explaining the injury, the nature of the injuries to the child, the medical evidence, and Reams's admission that she had the opportunity to abuse the child constituted substantial circumstantial evidence of guilt. Similarly, in Payne , we upheld a first-degree battery conviction for severe abuse of a child by a live-in boyfriend where there was a diagnosis of battered-child syndrome, Payne offered improbable statements explaining the circumstances of the child's injuries, and testimony from medical personnel demonstrated that the injury was not a result of an accident.
A common thread among these types of cases is that the accused offered an improbable explanation of the child's injuries that could not be reconciled with the medical evidence. The State suggests that we use the "improbable explanations for the bruising" as evidence of Snow's guilt, but the record shows that it was Kirby, not Snow, who offered the improbable explanations. The State also argues that the baby was in the care of only Snow and Kirby when the injuries occurred, that both parents denied any major accidents had occurred, and that Snow said Kirby had not hurt the baby. That only Snow and Kirby had access to the child does not indicate the guilt of one parent and not the other, nor does both parents' denial of any major accidents. It is true that Snow told investigators that Kirby had not hurt the baby, but he also said that he had not hurt the baby. And Kirby never indicated that Snow had hurt the baby. And though he did not immediately seek medical attention for the baby, this is not sufficient evidence that Snow, as opposed to Kirby, caused the harm. And finally, the video and accompanying commentary are certainly odd, but we cannot agree they are necessarily proof of guilt. The argument could just as easily be made that the fact that he made the videos is proof of his innocence and show the concern and uncertainty of a young father.
Based on the evidence presented, we hold that the State failed to exclude every other reasonable hypothesis; on this evidence it is just as reasonable to conclude that Kirby was the perpetrator. As we said earlier, two equally reasonable conclusions as to what occurred may give rise to a suspicion of guilt, but that is not enough to support a conviction. Fudge, supra. Consequently, we must reverse and dismiss Snow's conviction for first-degree battery.
Snow's conviction for first-degree endangering the welfare of a child is another matter. A person commits the offense of endangering the welfare of a minor in the first degree if, being a parent, guardian, person legally charged with care or custody of a minor, or a person charged with supervision of a minor, he or she purposely engages in conduct creating a substantial risk of death or serious physical injury to a minor. Ark. Code Ann. § 5-27-205(a)(1) (Repl. 2013). The term "conduct" is defined as "an act or omission and its accompanying mental state." Ark. Code Ann. § 5-2-201(3) (Repl. 2013) (emphasis added). In this case, Snow saw the child seizing and appearing lifeless, as evidenced by the videos he recorded on his phone. By his own admission, the baby's distress was evident on Saturday afternoon, a full two days before the baby was taken to the doctor. Dr. Farst testified that the failure to seek immediate medical care exacerbated the baby's injuries, so Snow's conduct not only placed the child at substantial risk, but also resulted in significant further injury to the child. Under these circumstances, we hold that substantial evidence supports Snow's conviction for first-degree endangering the welfare of a minor.
Reversed and dismissed in part; affirmed in part.
Gladwin, Klappenbach, and Hixson, JJ., agree.
Murphy and Brown, JJ., dissent. | [
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PHILLIP T. WHITEAKER, Judge
A. M. appeals a Howard County Circuit Court order requiring him to register as a sex offender. Because the trial court failed to make written findings on the statutory factors when ordering registration, we reverse and remand for reconsideration of the registration issue.
In March 2014, the Crimes against Children Division of the Arkansas State Police received a referral regarding possible inappropriate contact between fifteen-year-old A.M. and his five-year-old male cousin, K.B.1. During the course of the investigation into that incident, K.B.1's seven-year-old sister, K.B.2, revealed that A.M. had once placed his penis in her mouth. A.M. denied the allegations.
Based on the allegations of inappropriate sexual contact with K.B.2, the State filed a petition alleging that A.M. should be adjudged a juvenile delinquent for committing rape in violation of Arkansas Code Annotated section 5-14-103 (Supp. 2017), a Class Y felony. After a bench trial in July 2015, the Howard County Circuit Court made a delinquency finding, concluding that A.M. had committed the lesser-included offense of second-degree sexual assault and committed him to the Division of Youth Services (DYS). In September 2016, the court ordered that A.M. undergo a registration risk assessment through the Family Treatment Program of UAMS. UAMS subsequently issued a report which indicated that it did not recommend that A.M. be ordered to register as a sex offender.
In June 2017, the court ordered A.M. to serve six months' probation upon his release from DYS and to obtain an updated registration report. An amended order was entered on October 25, 2017, ordering UAMS to complete a juvenile-sex-offender screening and risk assessment. Again, UAMS issued a report that recommended against a registration order.
Although the State did not file a formal motion to seek a registration order, the court conducted a hearing on the issue of registration. At this hearing, the court orally expressed its concern that A.M. was still denying his responsibility for the sexual offenses. The court entered an amended disposition order requiring A.M. to register as a sex offender. The order did not contain any written findings regarding the statutory factors the court must consider when determining the propriety of registration.
A.M. now appeals the order requiring him to register as a sex offender, arguing that the trial court (1) failed to issue written findings as required by statute; (2) improperly considered his continued denials of misconduct; and (3) lacked authority to enter the order because no formal motion seeking same was ever filed. We first address A.M.'s last argument regarding the trial court's authority to require registration.
A.M. argues that the trial court lacked the authority to enter the registration order because the statute contemplates the State filing a motion seeking registration. See Ark. Code Ann. § 9-27-356(d) (Repl. 2015). A.M. did not make this argument below and thus cannot raise it on appeal unless his claim is one of subject-matter jurisdiction. It is well settled that with the notable exception of matters involving subject-matter jurisdiction, we will not consider issues raised for the first time on appeal, even where the issue is a matter of constitutional magnitude. See Turnbough v. Mammoth Spring Sch. Dist. No. 2 , 349 Ark. 341, 345-46, 78 S.W.3d 89, 92 (2002). A.M. recognizes that this argument was not raised below but contends that it is an issue of subject-matter jurisdiction and can be raised here for the first time on appeal. We disagree.
Our courts have recognized a distinction between "want of jurisdiction to adjudicate a matter and a determination of whether the jurisdiction should be exercised." State v. D.S. , 2011 Ark. 45, at 6 n.2, 378 S.W.3d 87, 90 n.2 (quoting Young v. Smith , 331 Ark. 525, 529, 964 S.W.2d 784, 786 (1998) ).
Jurisdiction of the subject matter is power lawfully conferred on a court to adjudge matters concerning the general question in controversy. It is power to act on the general cause of action alleged and to determine whether the particular facts call for the exercise of that power. Subject matter jurisdiction does not depend on a correct exercise of that power in any particular case. If the court errs in its decision or proceeds irregularly within its assigned jurisdiction, the remedy is by appeal or direct action in the erring court. If it was within the court's jurisdiction to act upon the subject matter, that action is binding until reversed or set aside.
Young , 331 Ark. at 529, 964 S.W.2d at 786 (quoting Banning v. State , 22 Ark. App. 144, 149, 737 S.W.2d 167, 170 (1987) ). Although failure to follow the statutory procedure in the exercise of this power constitutes reversible error, it does not oust the jurisdiction of the court. Noble v. Norris , 368 Ark. 69, 243 S.W.3d 260 (2006) (citing Banning, supra ).
Here, A.M.'s argument involves the court's failure to exercise its authority in a manner consistent with the registration statute and is not a question of subject-matter jurisdiction. As a result, it cannot be raised for the first time on appeal. See D.C.T. v. State , 2012 Ark. App. 227, at 3, 2012 WL 1111393.
However, A.M. is correct in his first argument that the registration order must be reversed because the trial court failed to make specific written findings on each statutory factor as required by statute. Arkansas Code Annotated section 9-27-356(e)(2)(A) states that the court shall consider the following factors in making its decision to require the juvenile to register as a delinquent sex offender:
(i) The seriousness of the offense;
(ii) The protection of society;
(iii) The level of planning and participation in the alleged offense;
(iv) The previous sex offender history of the juvenile, including whether the juvenile has been adjudicated delinquent for prior sex offenses;
(v) Whether there are facilities or programs available to the court that are likely to rehabilitate the juvenile prior to the expiration of the court's jurisdiction;
(vi) The sex offender assessment and any other relevant written reports and other materials relating to the juvenile's mental, physical, educational, and social history; and
(vii) Any other factors deemed relevant by the court.
Ark. Code Ann. § 9-27-356(e)(2)(A). Subsection (f) states: "The court shall make written findings on all the factors in subsection (e) of this section," and "[u]pon a finding by clear and convincing evidence that a juvenile should or should not be required to register as a sex offender, the court shall enter its order." Ark. Code Ann. § 9-27-356(f)(1), (2). The order in this case neither listed the statutory factors nor made any written findings with respect thereto. Therefore, it is unclear whether the court fulfilled its statutory obligations in this regard. As a result, we must reverse and remand for consideration of the relevant statutory factors and, if registration is ordered, for the entry of the required written findings.
Because on remand the trial court will reconsider its registration decision under the statutory factors enumerated in the statute, we need not address A.M.'s second argument that the trial court improperly considered his continued denial of wrongdoing. However, we note that the registration statute provides that "under no circumstances shall ... the refusal to admit to an offense for which he or she was adjudicated delinquent, or the refusal to admit to other offenses in the assessment process be considered in the decision whether to require registration." Ark. Code Ann. § 9-27-356 (e)(2)(B).
Reversed and remanded.
Klappenbach and Hixson, JJ., agree.
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ROBERT J. GLADWIN, Judge
Appellant Laura Hilburn appeals the January 25, 2018 adjudication order entered by the Washington County Circuit Court adjudicating her child, T.M., dependent-neglected. Hilburn argues that the evidence does not support the circuit court's finding that T.M. was dependent-neglected. We affirm.
I. Facts
Thirty-year-old Hilburn has given birth to eight children. Her parental rights as to the oldest two children previously have been terminated, and the remaining six-including one-year-old C.H. and newborn T.M.-are in foster care. On December 27, 2016, the Arkansas Department of Human Services (ADHS) removed five-day-old C.H. from Hilburn's custody. Three months later, the circuit court conducted an adjudication hearing at which time the circuit court found that, given Hilburn's methamphetamine addiction and usage, C.H. was dependent-neglected. During the six months that followed, ADHS performed drug screens on Hilburn at least seven times. She failed each screen, testing positive for THC on March 21; for methamphetamine, amphetamines, and THC on April 4, and June 9; for THC on June 27, August 4, and August 10; and for methamphetamine, amphetamines, and THC on September 6.
Three months after Hilburn's last positive methamphetamine drug screen, she gave birth to T.M. on December 13, 2017. T.M. was not born with drugs in his system and does not seem to be suffering any adverse effects. Although Hilburn also tested negative at the time of T.M.'s delivery for any illegal substances, given her history of drug abuse coupled with her recent illegal drug use while pregnant, ADHS assumed emergency custody of two-day-old T.M.
T.M. was removed from the hospital by ADHS on an emergency basis because of neglect and parental unfitness to the juvenile, a sibling, or other juvenile. The affidavit accompanying the order stated that Hilburn had used drugs throughout the pregnancy and had other terminations regarding her parental rights. One month later, the circuit court conducted an adjudication hearing in which it found that as a parent, Hilburn was unfit:
The Court finds, by a preponderance of the evidence, that [T.M.] is dependent/neglected as defined by the Arkansas Juvenile Code, as [T.M.] is at substantial risk of serious harm as a result of ... [parental unfitness].
Such finding is based on the Court's determination, after considering the evidence presented at this hearing, that these allegations in the petition and affidavit are true and correct. Specifically, in the open foster care case of [T.M.'s] half-sibling, [C.H. (72JV-16-952) ], Hilburn continued to test positive for illegal drugs-including methamphetamine-during the course of her pregnancy with [T.M.].
In the permanency planning hearing order from [72JV-16-952], and in the review hearing order from [72JV-16-952], the Court found that [Hilburn] tested positive for methamphetamine while she was pregnant with [T.M.]....
The Court finds that [Hilburn] was using methamphetamine while knowingly pregnant with [T.M.]. [Hilburn] testified today that the last time she used methamphetamine was in September-[Hilburn] was approximately seven (7) months pregnant with [T.M.] at that time. [Hilburn] had (and has) another [dependency-neglect] case on sibling [C.H. (72JV-16-952) ] which is open-[Hilburn] was [unreadable] is receiving services and drug screens throughout [C.H.'s] case and continued to use drugs[.]
On January 18, 2018, the circuit court ultimately adjudicated T.M. dependent-neglected due to Hilburn's drug use, and T.M. remained in foster care. Appellant filed a timely notice of appeal on January 29, 2018.
II. Standard of Review and Applicable Law
Adjudication hearings are held to determine whether the allegations in a petition are substantiated by the proof. Ark. Code Ann. § 9-27-327(a)(1)(A) (Supp. 2017). Dependency-neglect allegations must be proved by a preponderance of the evidence. Ark. Code Ann. § 9-27-325. In dependency-neglect cases, the standard of review on appeal is de novo, but we do not reverse the circuit court's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Ward v. Ark. Dep't of Human Servs. , 2018 Ark. App. 376, 553 S.W.3d 761. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In reviewing a dependency-neglect adjudication, we defer to the circuit court's evaluation of the credibility of the witnesses. Id. The focus of an adjudication hearing is on the child, not the parent; at this stage of a proceeding, the Juvenile Code is concerned with whether the child is dependent-neglected. Id.
Arkansas Code Annotated section 9-27-303(18)(A) defines a "dependent-neglected juvenile" as
any juvenile who is at substantial risk of serious harm as a result of the following acts or omissions to the juvenile, a sibling, or another juvenile:
(i) Abandonment;
(ii) Abuse;
(iii) Sexual abuse;
(iv) Sexual exploitation;
(v) Neglect;
(vi) Parental unfitness; or (vii) Being present in a dwelling or structure during the manufacturing of methamphetamine with the knowledge of his or her parent, guardian, or custodian.
A child is dependent-neglected when the preponderance of the evidence shows that a child is at a substantial risk of serious harm due to parental unfitness. Ark. Code Ann. § 9-27-303(18)(A)(vi). Illegal drug use by a parent makes the parent unfit. See Ward v. Ark. Dep't of Human Servs. , 2011 Ark. App. 550, 2011 WL 4388579 ; Maynard v. Ark. Dep't of Human Servs. , 2011 Ark. App. 82, 389 S.W.3d 627.
An adjudication of dependency-neglect based on a prior adjudication of a sibling is not an automatic decision. Bean v. Ark. Dep't of Human Servs. , 2016 Ark. App. 350, 498 S.W.3d 315. "It is the particular facts of the case that give rise to the affirmation of the circuit court's dependency-neglect findings, and not due solely to the status of older siblings." Haney v. Ark. Dep't of Human Servs. , 2017 Ark. App. 437, at 6, 526 S.W.3d 903, 907.
III. Discussion
Hilburn notes that it is undisputed that neither she nor T.M. had illegal substances in their systems at the time T.M. was born; accordingly, Arkansas Code Annotated section 9-27-303 does not apply for any automatic removal of the child from appellant's care. She reiterates that at the adjudication hearing, the burden was on ADHS to show that T.M. was in imminent danger. In response to the motion for directed verdict, ADHS stated that its burden of showing "imminent danger" was met by the exposure of T.M. to illegal drug use while Hilburn was pregnant, as well as the fact that she "has not shown she has any semblance whatsoever of sobriety." Hilburn argued in response that there had been no new reasons since T.M. was born to take T.M. away and adjudicate him dependent-neglected.
Hilburn cites Haney , supra , in which this court found that the minor was incorrectly adjudicated dependent-neglected because two other siblings had been removed from the mother and ADHS rested solely on the status of the older siblings being removed. This court held that there was no evidence presented to support the finding that the minor would be at substantial risk of serious harm because the order to remove the minor was entered before the minor's birth, and the circuit court failed to assess "the level of risk posed" to the minor child "at the time of birth." Id.
Hilburn maintains that the same analysis used in Haney should be applied here. In her case, ADHS rested on the fact that she used drugs during pregnancy and had her parental rights to T.M.'s siblings terminated to establish the risk to T.M. There was no assessment of the risk at the time of T.M.'s birth, and the evidence showed no drug use at the time of his birth. Appellant urges that the mere fear and speculation of continued drug use is not sufficient for ADHS to meet its burden.
Similarly, in Conn v. Arkansas Department of Human Services , 79 Ark. App. 195, 85 S.W.3d 558 (2002), the decision to terminate parental rights was reversed based on insufficient evidence. The sole evidence submitted as a basis for termination was that the appellant parents had their rights terminated as to a sibling of the child in question. Appellant suggests a similarity to this case because all that was proffered was her prior drug use. She claims that there is no showing of any detrimental effect of that prior drug use on T.M. or any danger or harm that he would suffer.
Hilburn acknowledges that this court has held that a parent's illegal drug use supports a finding of dependency-neglect.
See Tadlock v. Ark. Dep't of Human Servs. , 2009 Ark. App. 841, 372 S.W.3d 403. But Hilburn points out that in Tadlock , there were several factors supporting the finding in addition to the parent's drug use, including evidence of drug use after the child's birth. She notes that subsequent drug use was not established in this case.
In their motions to dismiss, both ADHS and Hilburn addressed the principle of Garrett's Law, found in section 9-27-303 (36)(B), regarding drugs found in the bodily fluids of the baby or mother as a basis for removal. Hilburn suggests that the legislative intent was to use the concurrent birth and positive drug test-not past use alone-to establish harm or abuse. She urges that because the legislature did not speak to the situation in which there was past drug use, only the concurrent birth and positive drug test automatically constitute abuse or harm.
Because the only evidence presented by ADHS was appellant's past drug use and her other open ADHS case with C.H., Hilburn contends that ADHS failed to meet its burden to show that T.M. was dependent-neglected. We disagree and hold that sufficient evidence established that T.M. was dependent-neglected based on Hilburn's parental unfitness because T.M.'s sibling, C.H., was found dependent-neglected and remained in ADHS custody, Hilburn had not complied with the case plan in C.H.'s case, Hilburn had tested positive for drugs throughout her entire pregnancy with T.M., and Hilburn had not submitted to random drug screens since T.M.'s birth.
A finding of dependency-neglect "does not require proof of actual harm or impairment having been experienced by the child. The term 'substantial risk' speaks in terms of future harm." Goodwin v. Ark. Dep't of Human Servs. , 2014 Ark. App. 599, at 3, 445 S.W.3d 547, 549. We acknowledge the holding in Haney , 2017 Ark. App. 437, at 6, 526 S.W.3d at 907, that "mindset alone" is not a basis for adjudication based on a sibling's prior adjudication of dependency-neglect when the parents had completed all services, including drug-and-alcohol screenings, all visitations, parenting classes, and individual and separate counseling. But Haney is distinguishable in that Hilburn was far from having completed all services and court-ordered case-plan requirements.
Hilburn's well-documented methamphetamine use had not been resolved at the time of the adjudication of T.M., as evidenced by the circuit court orders in C.H.'s case. C.H., was removed on December 27, 2016, based on Hilburn's use of methamphetamine while pregnant with C.H. and her inability to care for C.H. because of her methamphetamine addiction. C.H. was adjudicated dependent-neglected on March 8, 2017. The circuit court entered an order in that case as recently as December 18, 2017, finding that Hilburn had failed to make any progress toward mitigating the cause of removal and changing the goal in that case to adoption. Three days before that order was entered, T.M. was born on December 13, 2017. The circuit court specifically found:
[Hilburn] has refused to participate in services. [Hilburn] has not maintained weekly contact with DHS; has not informed DHS of her current telephone number and address; has not participated in individual counseling; has not demonstrated that she has abstained from illegal drug use, has not submitted to random weekly drug screens; has not provided DHS with proof of stable housing and employment; has not maintained a clean and safe home, has not demonstrated that she can protect C.H. and keep him safe from harm. [Hilburn] has continued to use methamphetamine throughout the life of this case. Additionally, [Hilburn] filed a Consent to Termination of Parental Rights on December 4, 2017, and the 10 days to revoke her consent has lapsed. She has made no progress towards alleviating or mitigating the causes of the juvenile's removal from the home and completing the court orders and requirements of the case plan.
At T.M.'s adjudication hearing, Hilburn's caseworker, Whitney Muller, testified that she was Hilburn's caseworker in T.M.'s case as well as C.H.'s case. Muller also testified that Hilburn conceived T.M. sometime around March 2017 yet continued to test positive for drugs on March 21, April 4, June 9, June 27, August 4, August 10, and September 6, 2017. Muller also testified that Hilburn has been on the drug-screen call list but had not presented for any drug screens since T.M. had gone into foster care. Muller's testimony was corroborated by the documents presented to the circuit court, which included drug-screen results, appellant's ADHS history, and the case plan for T.M.
The supporting facts in this case are significantly different from those in Haney , where the adjudication of the older children-R.N. and B.N.-was based on a one-time incident. In Haney , the circuit court adjudicated them dependent-neglected because, while their parent napped, their sibling-A.N.1-had drowned. Id. The parents fully completed all case-plan requirements developed after the tragic death of A.N.1, and no evidence was presented linking the parents' belief that A.N.1's death was accidental to any ongoing risk of harm to the other children, when they had successfully completed drug-and-alcohol screenings, all visitations, parenting classes, and individual and separate counseling.
Moreover, in Haney , the circuit court prejudged A.N.2's-the youngest child's-dependency-neglect status. The circuit court ordered the parent "to surrender A.N.2 to DHS upon her birth or as soon as they were discharged from the hospital...." Haney , 2017 Ark. App. 437, at 2, 526 S.W.3d at 904. In contrast, here the circuit court proceeded through the proper legal channels to safeguard Hilburn's legal rights while assessing T.M.'s safety. The circuit court, only after hearing all the evidence regarding Hilburn's behavior regarding drug use and screenings that occurred both before and after T.M.'s birth, determined its findings. The dependency-neglect adjudication was based on appellant's ongoing methamphetamine use. In contrast to Haney , Hilburn had not completed any services at all related to the health-and-safety risks to her children posed by her ongoing drug addiction.
Hilburn's situation is similar to other cases affirming dependency-neglect findings when parents continue to use drugs, exposing themselves to criminal liability and impacting the ability to safely care for the child. See, e.g. , Gaer v. Ark. Dep't of Human Servs. , 2012 Ark. App. 516, 2012 WL 4128137 ; Chambers v. Ark. Dep't of Human Servs. , 2011 Ark. App. 91, 2011 WL 386966. Based on both findings that T.M.'s sibling was adjudicated dependent-neglected and that Hilburn had not demonstrated sustained sobriety-having used drugs throughout most of her pregnancy with T.M. and failing to report for drug screens after the birth-we hold that the circuit court did not clearly err in finding T.M. dependent-neglected.
The preponderance of the evidence before the circuit court proved that Hilburn had used illegal drugs while C.H. was in foster care and during her pending dependency-neglect case. Hilburn's continued drug use demonstrated her disregard for C.H. and severely hindered any efforts at reunification. It further indicated blatant disregard for T.M.'s health, safety, and welfare. Not only did Hilburn fail to offer anything to refute this evidence, she corroborated it by confessing that sometime near the beginning of the last trimester of her pregnancy with T.M., she had used methamphetamine.
The circuit court weighed the conflicting evidence and resolved the conflicts, appropriately determining that the evidence supports a parental-unfitness finding. Given the circuit court's findings in C.H.'s case, there was good cause for concern about T.M.'s well-being. Those findings, previously addressed, explained not only why ADHS had removed C.H. from appellant's custody, but appellant's continued illegal drug abuse as well. The findings indicated how appellant's substance abuse and failure to obtain a safe and stable home prevented the return of C.H. to her custody, which also supported the need to remove T.M.
Appellant essentially argues that the circuit court incorrectly weighed the conflicting evidence. To find merit in her argument would require this court to act as a super fact-finder or second-guess the circuit court's credibility determination; however, such is not the appellate court's function. See Lynch v. Ark. Dep't of Human Servs. , 2012 Ark. App. 149.
Affirmed.
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KAREN R. BAKER, Associate Justice
On July 12, 2018, in Rogers v. State , 2018 Ark. 242, 550 S.W.3d 387, we affirmed the convictions and sentences of appellant, Edward Darnell Rogers. On July 12, 2018, Rogers filed a petition for rehearing and the State responded. We grant the petition for rehearing and issue the following substituted opinion.
In February 2015, Rogers, was charged with four counts of rape. The victims, L.W., twins Mi.B. and T.B., and Ma.B. were all under the age of eighteen at the time of the alleged offenses. On February 8, 2016, Rogers was convicted by a Pulaski County Circuit Court jury of three counts of rape and sentenced to an aggregate sentence of forty years in prison. Rogers timely appealed to the court of appeals, which reversed and remanded the matter to the circuit court. The State filed a petition for review, and on January 25, 2018, we granted the petition for review. Upon granting a petition for review, this court considers the appeal as if it had been originally filed in this court. Pack v. Little Rock Convention Ctr. & Visitors Bureau , 2013 Ark. 186, at 2-3, 427 S.W.3d 586, 588. On appeal, Rogers presents two issues: (1) There is insufficient evidence to support his rape convictions of Mi.B., Ma.B., and L.W.; and (2) the circuit court erred by not allowing Rogers to impeach L.W. with a crime of dishonesty.
I. Facts
In 2003, Tia Bryant moved to a neighborhood in North Little Rock. Bryant has five children -one adult son and four daughters. The adult son did not live with Bryant. Rogers already resided in the neighborhood-living with his mother across the street from Bryant. The two met and began dating. In 2006, Rogers moved into Bryant's home with her and her four daughters, L.W., twins Mi.B. and T.B., and Ma. B. All four girls testified that Rogers acted as a father to them, took them to and from school, to extracurricular activities, and bought clothes and food for them. All four girls testified that Rogers began touching them inappropriately when they were young teenagers. They each testified to multiple sexual encounters, in their early teens, that included penetration.
At trial, the following evidence was presented. The State called T.B., who was seventeen at the time of the trial, and she testified that she first met Rogers in 2003 when he began dating her mother and eventually moved in with them. She testified that she and her siblings thought of Rogers as a father and called him "Daddy." T.B. further testified that when she was thirteen, Rogers started "kissing and rubbing" on her while she was watching television in the living room late one night when everyone else was asleep. She threatened Rogers that she would tell her mother, and he stopped. T.B. testified that several days after this incident, Rogers set up his blow-up mattress in the living room and asked her to come sit with him. T.B. testified that after kissing T.B. on her face and breasts, Rogers then went out to his car and retrieved a gold condom. T.B. testified that he laid her down on the mattress and penetrated her with his penis. She further testified that she asked Rogers to stop and that she was crying the entire time. T.B. testified that after it was over, Rogers wrapped the used condom in a piece of paper and threw it into the trash. T.B. testified that two or three weeks later, Rogers asked her to go grocery shopping with him, drove to a dead-end street, grabbed a condom from the glove compartment, and again raped her. T.B. testified that he also performed oral sex on her. T.B. testified that Rogers raped her on seven or eight other occasions in her living room, and the rapes stopped when she fifteen or sixteen years old. T.B. stated that she threatened to tell her mother, but Rogers told her that he would hurt her mother and then kill himself.
T.B. further testified that she witnessed Rogers abusing her sisters. One night, she was sleeping in the top bunk of the bedroom that she shared with Mi.B. and Ma.B., and she saw Rogers performing oral sex on Ma.B. On a later date, when it was only T.B. and Mi.B. in the house, T.B. heard a "clapping noise" and saw Rogers in the living room having sex with Mi.B. as Mi.B. was bent over the sofa. T.B. also stated that Rogers had shown her videos of her older sister, L.W., and Rogers having sex with L.W. on the couch. T.B. stated that Mi.B. disclosed the rapes to their mother one afternoon after school in November 2014, and T.B. confirmed that it had happened to T.B. as well. T.B. stated that Rogers had moved to a nearby home in October 2013 and that the abuse stopped at that time, although the family continued to have some contact with him until the allegations of rape were disclosed in 2014.
Next, the State called Ma.B., who was sixteen at the time of trial. She testified that Rogers began touching her inappropriately when she was twelve or thirteen. Ma.B. testified that the first time she was raped, she and her sisters were helping their mother clean a back room of the house and that she was told to go get the broom. When Ma.B. went into the living room, Rogers was masturbating, and he asked her to come over to him. He then grabbed Ma.B.'s hand, placed it on his penis, and told her to move it up and down. Ma.B. stated that a few days later, when no one else was at home, Rogers began kissing and touching her, then he raped her. She testified that he used a condom with a gold wrapper. Ma.B. testified that Rogers raped her at least five times, either in the living room, in her bedroom, or in his car. She stated that on at least one occasion, Rogers had come into her room at night and abused her while her sisters were present. Ma.B. testified that Rogers had also raped her and Mi.B. one time while they were all in the living room. Ma.B. stated that Rogers told her that if she told her mother about the abuse, "it would hurt her." Ma.B. testified she did not disclose the rapes until her sister Mi.B. told their mother. Ma.B. testified that she had loved Rogers and called him "Daddy" prior to the abuse and that she had no reason to lie about it.
Next, the State called Mi.B., who was seventeen at the time of trial; she testified that Rogers had helped raise her and her sisters. Mi.B. testified that when she was thirteen, Rogers pulled out his penis and told her to touch it and she said no. On another occasion, Mi.B. testified that her sister had caught her watching pornography, and Rogers asked her if she wanted to do any of those things from the video with him - she told him no and left the room. Mi.B. testified that one night when everyone else was asleep, Rogers showed her videos of him having sex with different women, and he then proceeded to rape her on the blow-up mattress in the living room. Mi.B. further testified about other times when Rogers raped her on the couch in the living room and in his car with the seat reclined. She testified that there was a total of six to seven rapes over the course of two weeks. According to Mi.B., she had also witnessed Rogers having sexual intercourse with Ma.B. one night while Mi.B. was sleeping next to her. Mi.B. testified that she had told her mother about the abuse while they were in the car one afternoon. She stated that she did not tell her mother earlier because Rogers had threatened to kill himself and hurt her mother. Mi.B. admitted that she had recorded a video recanting the allegations and stating that her mother was just angry with Rogers because he had left her. However, Mi.B. claimed that she had made the video only because she thought she would get paid money and could help her mother, who was struggling financially. Mi.B. testified that she was lying in the videos but not at trial. She admitted on cross-examination that she would lie whenever she felt like it.
The State also called Marlon Raglin, who knew Mi.B. through Raglin's cousin. Raglin testified that Mi.B. had a crush on him and admitted that he had encouraged her to make the video. He stated that he knew Rogers through Deshawn Ford, who lived with Raglin. Raglin claimed that it was actually his cousin and Ford who had pushed Mi.B. to make the video and who had helped her film it. Raglin denied that he had been offered anything from Rogers in return for encouraging Mi.B. to recant the allegations. Raglin testified that Mi.B. had told him long before she made the video that the rapes did not occur and had asked him what to do. Raglin testified that he had told her "to help the guy out."
The State also called Detective Ashley Noel with the North Little Rock Police Department, who testified that she had investigated the allegations against Rogers. She testified that she did not collect any physical evidence from the house because of the length of time between the alleged acts and the filing of charges and because she would have expected to find Rogers's DNA on many items in the house given that he had resided there for years.
The State called L.W., who was twenty-one at trial; she testified that Rogers had lived with her family off and on beginning when she was ten and that she thought of him as a father. She stated that when she was fourteen, Rogers raped her in her bedroom after school when no one else was at home. L.W. also testified about another occasion approximately one month later when he raped her on the couch in the living room. In total, L.W. stated that Rogers had raped her five or six times and that the abuse stopped during her senior year in high school. She testified that she did not see him abuse her sisters and that she did not tell her mother about the rapes until she asked about them in November 2014. L.W. testified that Rogers had threatened to kill her mother and himself if she told anyone.
The State also called Dr. Kristen Long, an emergency room physician at Arkansas Children's Hospital, who testified that she examined T.B., Mi.B., and Ma.B. on December 1, 2014. Dr. Long testified that she did not perform a full genital exam on the girls because the alleged rapes had occurred more than one year prior.
Finally, the State called Bryant. Bryant testified that she had dated Rogers and that he had moved in with her in 2003 or 2004. Bryant testified that Rogers was heavily involved in caring for the girls and that he treated them like daughters. In late 2013, Bryant stated that Mi.B. told her that Rogers had touched her and T.B. inappropriately. Further, Bryant testified that the girls did not disclose at that time that they had been raped. Bryant testified that she confronted Rogers about the alleged inappropriate touching, and he told her that he "had made a mistake" and that it "would not happen again." Bryant testified that soon after this, Rogers moved out of the house although the family continued to have contact with him. Bryant testified that in November 2014, Mi.B. disclosed to her that Rogers had raped her and her sisters and that this was the reason why Mi.B. had recently run away. Bryant testified that she talked to each of the girls, one on one, and that they all confirmed the abuse. Bryant further testified that on the following day, Bryant told Rogers's sister about the girls' disclosure, and they called Rogers on speaker phone from Bryant's car. Bryant stated that Rogers was remorseful and wanted to talk to her, so she went and met with him. Bryant testified that Rogers told her that he had been abused by a relative when he was a boy, and he then threatened to commit suicide. Bryant testified that she encouraged Rogers to turn himself in to the police, and she also warned his mother that he might harm himself. Bryant testified that later that day, after she had picked up the girls from school, Bryant took the girls to the police station where they made a report about the rapes. Bryant testified that the family had struggled financially after Rogers moved out, but she denied that she had encouraged her daughters to fabricate the allegations. Bryant testified that she was not surprised that Rogers picked Mi.B. to offer money in return for recanting her accusations because she was a "follower" and was easily influenced. Bryant further testified that her daughters had experienced a lot of difficulties in overcoming the abuse, including having to be hospitalized for mental breakdowns and suicidal thoughts.
On behalf of the defense, Rogers's sister, Tamara Rogers, testified that she lived with her mother across the street from Bryant. Tamara understood that Rogers had moved out of Bryant's home only because there was no room once Bryant's son's family came to stay with them. Tamara testified that the Bryant family had continued to maintain a close relationship with Rogers until he was arrested on the rape charges. She confirmed that Bryant had told her about the rape allegations before notifying the police and that Bryant had phoned Rogers in her presence to confront him. However, Tamara testified that she listened to their entire conversation and that her brother did not ever admit to the allegations.
Further, additional neighbors and family members of Rogers testified that they had witnessed him interacting with the girls, including in 2014 after Rogers had moved out of Bryant's home, and they testified that they had never noticed any unusual behavior either by the girls or by Rogers. All of these witnesses spoke highly of Rogers and were surprised by the rape charges. Comel Hackett testified that she knew Rogers and that she worked with L.W. at Target. Hackett stated that when she learned about Rogers's arrest, he asked L.W. if Rogers had raped her, and she told him "no."
Finally, Rogers testified in his defense and denied the allegations. Rogers testified that he met Bryant in 2003 or 2004 and moved in with her after several years of dating. He testified that he was a father figure to the girls and denied ever having touched them inappropriately. Rogers testified that he had moved out in October 2013 because some of his money "went missing" and no one confessed to taking it. He testified that Bryant was angry with him for moving out but that, at first, their relationship continued. He also testified that he continued to maintain a relationship with the girls. Rogers stated that the weekend before he was arrested, he was across the street at his mother's house with his new girlfriend, and Bryant kept calling his cell phone. Rogers testified that when he finally spoke with Bryant, she told him to get that "bitch" away from her house. Rogers claimed that Bryant had the girls make up the rape charges because she was mad at him. Rogers testified in his defense and denied all of the allegations. He also testified that he moved out because someone was stealing money from him and that Bryant fabricated the accusations because she was jealous he was seeing someone else.
Following deliberations, the jury convicted Rogers of three counts of rape against Ma.B., Mi.B., and L.W. He was found not guilty of raping T.B. The jury sentenced Rogers to twenty years' imprisonment for raping L.W. and Mi.B. and forty years' imprisonment for raping Ma.B., to be served concurrently. This appeal followed.
II. Points on Appeal
A. Sufficiency of the Evidence
For his first point on appeal, Rogers contends that substantial evidence does not support his convictions and sentences. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Whitt v. State , 365 Ark. 580, 232 S.W.3d 459 (2006). When reviewing a challenge to the sufficiency of the evidence, this court assesses the evidence in the light most favorable to the State and considers only the evidence that supports the verdict. Gillard v. State , 366 Ark. 217, 234 S.W.3d 310 (2006). We will affirm a judgment of conviction if substantial evidence exists to support it. Id. Substantial evidence is evidence which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Ricks v. State , 316 Ark. 601, 873 S.W.2d 808 (1994). Further, circumstantial evidence may provide a basis to support a conviction, but it must be consistent with the defendant's guilt and inconsistent with any other reasonable conclusion. Edmond v. State , 351 Ark. 495, 95 S.W.3d 789 (2003). The credibility of witnesses is an issue for the jury and not the court. Burley v. State , 348 Ark. 422, 73 S.W.3d 600 (2002). The trier of fact is free to believe all or part of any witness's testimony and may resolve questions of conflicting testimony and inconsistent evidence. Id. Upon review, this court's role is to determine whether the jury resorted to speculation and conjecture in reaching its verdict. Ross v. State , 346 Ark. 225, 57 S.W.3d 152 (2001) ; Phillips v. State , 344 Ark. 453, 40 S.W.3d 778 (2001). Finally, "in rape cases, we have held that there is sufficient evidence to support a conviction if the victim gives 'a full and detailed accounting of the defendant's actions.' White v. State , 367 Ark. 595, 599, 242 S.W.3d 240, 249 (2006). Uncorroborated testimony of a rape victim is sufficient evidence to support a conviction. See Gillard v. State , 366 Ark. 217, 234 S.W.3d 310 (2006). Inconsistencies in the rape victim's testimony are matters of credibility that are left for the jury to resolve. See id. The jury may accept or reject testimony as it sees fit. See id. " Ward v. State , 370 Ark. 398, 400, 260 S.W.3d 292, 294-95 (2007).
Rogers was convicted of rape under Ark. Code Ann. § 5-14-103, which provides in pertinent part:
(a) A person commits rape if he or she engages in sexual intercourse or deviate sexual activity with another person:
(1) By forcible compulsion;
...
(3)(A) Who is less than fourteen (14) years of age.
(4)(A) Who is a minor and the actor is the victim's:
(i) Guardian;
Ark. Code Ann. § 5-14-101, "Definitions," provides in pertinent part:
As used in this chapter:
(3) "Guardian" means a parent, stepparent, legal guardian, legal custodian, foster parent, or any person who by virtue of a living arrangement is placed in an apparent position of power or authority over a minor.
With these standards in mind we turn to Rogers's point on appeal. Rogers asserts that the State failed to present sufficient evidence to support his convictions and sentences. At trial, Rogers moved for directed verdict and renewed the motion based on his argument that
[o]n the count against Ma.B., the State failed to meet a prima facie case in that they've failed to show that Edward Rogers engaged in sexual intercourse or deviate sexual activity with Ma.B. and that Ma.B. was less than 14 years of age at the time of the alleged offense.
....
On the charge involving T.B., the State failed to make a prima facie case in that they failed to show that Edward Rogers engaged in sexual intercourse or deviate sexual activity with T.B. and that she was less than 18 years of age at the time of the alleged offense. And that Mr. Rogers was ... [T.B.'s] guardian.
....
I'm gonna make the next two motions because they are the same as the T.B. But the State has failed to make a prima facie case that Edward Rogers engaged in sexual intercourse or deviate sexual activity with either Mi.B. or L.W., and that Mi.B. and L.W. were less than 18 years of age at the time of the alleged offense. And that Mr. Rogers was Mi.B.'s or L.W.'s guardian.
In reviewing Rogers's challenge, we note that "this court will not address arguments that are raised for the first time on appeal. Sylvester v. State , 2016 Ark. 136, 489 S.W.3d 146. Furthermore, parties are not permitted to change the grounds for an objection on appeal, but instead are bound by the nature and scope presented at trial. Id. " Marshall v. State , 2017 Ark. 347, at 5, 532 S.W.3d 563, 566. Here, on appeal, Rogers contends for the first time that the evidence failed to support his convictions because of the lack of physical evidence, the delayed reporting, and the credibility of the victims. At trial, he did not make this argument; therefore, the issue is not preserved for appeal and we affirm on this point.
B. Theft-of-Property Conviction
For his second point on appeal, Rogers asserts that the circuit court erred in not allowing Rogers to impeach L.W. with a prior theft conviction. The State asserts that Rogers did not preserve this issue for appeal and any error was harmless. Our standard of review regarding evidentiary rulings is that "the admission or rejection of evidence is left to the sound discretion of the circuit court, and we will not reverse the court's ruling absent a manifest abuse of discretion." Eubanks v. State , 2009 Ark. 170, at 3, 303 S.W.3d 450, 452.
At issue is the circuit court's not allowing Rogers to impeach L.W. with her prior misdemeanor conviction for theft of property. Rule 609(a) of the Arkansas Rules of Evidence provides: "For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted but only if the crime.... involved dishonesty or false statement, regardless of the punishment." During cross-examination of L.W., the following colloquy occurred:
DEFENSE ATTORNEY : At the time it was oh, this only happened in the ninth grade, but since that time you've remembered it happened through the 10th, 11th, and 12th?
L.W.: The more I talk about it, the more I remember.
DEFENSE ATTORNEY : And you said a minute ago the reason you didn't tell anybody because he told you that he would hurt your momma.
L.W.: Correct.
DEFENSE ATTORNEY : You didn't tell them that at all in 2014. Correct?
L.W.: Correct.
DEFENSE ATTORNEY : Did you ever tell Comel Hackett that nothing happened to you, that the rape didn't occur?
L.W.: No.
DEFENSE ATTORNEY : You sure?
L.W.: I'm positive.
DEFENSE ATTORNEY : Okay and you worked with Comel at Target?
L.W.: Yes.
DEFENSE ATTORNEY : Judge, may we approach for a second?
THE COURT : You may.
(Thereupon out of the hearing of the jury, the following conversation took place between counsel and the court):
DEFENSE ATTORNEY : She has a misdemeanor conviction out of 2014 for theft of property. Before I impeach her for that, I want to make sure y'all are objecting on that?
THE STATE : Yes. It's a misdemeanor, and it's over - - I mean, it's over a year old.
DEFENSE ATTORNEY : It's a misdemeanor, but it's in the matter that deals with truthfulness.
THE STATE : Actually that does not. It involved filing a false police report, something like that.
THE COURT : I agree.
Rogers contends that this ruling was an abuse of discretion because theft of property is a crime involving dishonesty and is therefore always admissible under Rule 609(a). The State responds that this argument is not preserved for appeal because Rogers failed to proffer the underlying facts behind the theft conviction and to establish that the crime did, in fact, involve dishonesty or false statement.
With regard to preservation, the admission of evidence of prior convictions involving dishonesty and false statements is not a matter within the discretion of the circuit court; such evidence is always admissible for impeachment purposes and its exclusion is an abuse of discretion. Wal-Mart Stores, Inc. v. Regions Bank Tr. Dep't , 347 Ark. 826, 839, 69 S.W.3d 20, 28-29 (2002). We have consistently interpreted Ark. R. Evid. 609(a) to include theft of property as a crime involving dishonesty. Floyd , 278 Ark. 86, 643 S.W.2d 555 (holding that, because Floyd's convictions for burglary and theft were crimes involving dishonesty pursuant to Rule 609, they were admissible without the weighing test); State v. Cassell , 2013 Ark. 221, 427 S.W.3d 663 (stating that the crime involved in that case was a theft offense, which involves dishonesty); Edwards v. Campbell , 2010 Ark. 398, 370 S.W.3d 250 (holding that misdemeanor theft of property, as defined in Ark. Code Ann. § 5-36-103(a), is a crime of dishonesty); Webster v. State , 284 Ark. 206, 680 S.W.2d 906 (1984) (stating that grand larceny involves dishonesty); James v. State , 274 Ark. 162, 622 S.W.2d 669 (1981) (stating that prior convictions for theft, grand larceny, and forgery all involved dishonesty).
Further, as discussed above, we have held that crimes involving dishonesty, including theft of property, are automatically admissible under Rule 609(a) and that it is not within the discretion of the circuit court to exclude this evidence. Wal-Mart Stores, Inc. , 347 Ark. 826, 69 S.W.3d 20 (citing congressional commentary to Fed. R. Evid. 609(a), which is identical to our rule). We have also explained that such convictions are particularly probative of a witness's credibility. Id. "In short, a person exhibits dishonesty when he or she knowingly takes unauthorized control of someone else's property or obtains that property through deception or threat with the purpose of depriving the owner of the property...." See Edwards , 2010 Ark. 398, at 9-10, 370 S.W.3d 250, 255 ; Floyd v. State , 278 Ark. 86, 643 S.W.2d 555 (1982) ; James , 274 Ark. 162, 622 S.W.2d 669. In other words, the offense at issue here, theft of property, by definition involves dishonesty and is automatically admissible pursuant to Rule 609(a), and Rogers was not required to proffer the conviction. See Edwards , supra. Accordingly, the circuit court abused its discretion by refusing to admit the evidence.
Next, Rogers contends that based on the circuit court's error, we must reverse and remand all three convictions because L.W.'s credibility was critical and material to his defense, there was no physical evidence of the alleged rapes, and his convictions were based solely on the victims' testimony. The State responds that Rogers was not prejudiced by the court's evidentiary ruling and any error was harmless.
Here, the State's case in this matter hinged on one thing-the credibility of the victims, including L.W. There is no other evidence in this case. Simply put, it was a "he said she said" battle between Rogers, his family and neighbors on one side and the victims and their mother on the other. During cross-examination, Rogers questioned L.W. regarding her testimony regarding the alleged rape and L.W.'s conversations with Comel Hackett about the rape. Rogers sought to impeach L.W. because he wanted to convince the jury that L.W. was not credible and to cast doubt on her testimony. The impeachment evidence Rogers sought to introduce concerning L.W. directly relates to her credibility, and her credibility was critical to the question before the jury.
Additionally, Rogers's defense was based on the premise that the four girls, along with Bryant, had conspired to concoct their rape allegations against him. Rogers claimed that they had made up the charges to get even with him for moving out of the home and ending the relationship with Bryant. In the State's closing argument, the State acknowledged the alleged collusion when the prosecutor stated: "The Defendant wants you to believe the victims colluded and planned their stories in order to frame him because [Bryant] was mad." Because all of the victims' allegations were intertwined, we cannot say that the erroneous exclusion of evidence that would have adversely affected L.W.'s credibility would not have also affected the jury's decisions with regard to Mi.B. and Ma.B. It is unknown whether the jury would have concluded that the evidence successfully impeached her credibility or that Rogers's alternative theory was a reasonable one, but the evidence Rogers sought to introduce to impeach L.W.'s credibility satisfied the requirements of Rule 609, and the evidence should have been allowed.
Finally, because the only evidence to support Rogers's conviction was the victims' testimony, the victims' credibility was presumably a major consideration for the jury. See Scamardo v. State , 2013 Ark. 163, 426 S.W.3d 900. In other cases in which the witnesses' credibility is a significant issue, such as in rape or sexual-abuse cases, we have declined to hold that the error was harmless. See, e.g. , Scamardo , supra ; Winfrey v. State , 293 Ark. 342, 738 S.W.2d 391 (1987).
In sum, because all of the girls' allegations were intertwined, the circuit court's error in excluding the evidence cannot be considered slight. The case against Rogers rested solely on the victims' credibility, and the jury had to choose between whether to believe the victims and their mother or Rogers and his friends and family. We cannot say that L.W.'s testimony had no bearing on whether the jury believed Mi.B. and Ma.B., and we reverse Rogers's three rape convictions and remand for a new trial or further proceedings.
Reversed and remanded; court of appeals opinion vacated.
Goodson, Wood, and Womack, JJ., dissent.
A Pulaski County jury convicted Edward Rogers of three counts of rape. Rogers appealed to the court of appeals, which reversed. We granted the State's petition for review and affirmed the circuit court in a 4-3 decision. Rogers v. State , 2018 Ark. 242, 550 S.W.3d 387. Rogers petitioned for rehearing, which the majority, in a break from long-standing precedent, grants. The majority now reverses Rogers's three rape convictions and remands for a new trial. As an initial matter, I would deny Rogers's petition for rehearing. On rehearing, I would affirm his rape convictions.
Petition for Rehearing
Rogers's petition for rehearing fails to comport with or rules for rehearing and thus, should be denied. Arkansas Supreme Court Rule 2-3 prescribes the process for a petition for rehearing.
(g) Entire case not to be reargued. The petition for rehearing should be used to call attention to specific errors of law or fact which the opinion is thought to contain. Counsel are expected to argue the case fully in their original briefs, and the brief on rehearing is not intended to afford an opportunity for a mere repetition on the argument already considered by the Court.
The petitioner must allege a specific error of law or fact within the original opinion, and he is expressly barred from merely repeating arguments already considered by the court. Until now, this court has firmly held to these limits.
Indeed, we have repeatedly stated that we will not consider portions of a petition for rehearing that are "nothing more than repetitions of arguments already considered and dismissed by the court." MacKool v. State , 2012 Ark. 341, at 2, 2012 WL 4321303 (per curiam). In MacKool , we refused to reconsider the same legal error the petitioner had originally raised and that the court had already considered on appeal. In denying the petition, we stated, "Petitioner is simply trying to rehash this argument a second time through his petition for rehearing." Id. at 4. Similarly, an appellant cannot attempt to readdress arguments raised on appeal by citing cases it neglected to cite in its original briefing. See S. Paper Box Co. v. Houston , 15 Ark. App. 176, 183-B, 697 S.W.2d 124, 124 (1985) (applying then Arkansas Supreme Court Rule 20(g) ). When an appellant simply renews his argument by citing cases not referenced in his original brief, the appellate court cannot reconsider his arguments and should deny the petition for rehearing. Id.
Rogers's petition for rehearing fails to comply with the requirements of the rule. He does not allege that our July opinion contains any error of law or fact. In fact, he fails to cite a single legal error. Instead, Rogers challenges the majority's harmless-error application to the facts. Such a challenge is inappropriate in a petition for rehearing. Indeed, I cannot find a single case in which this court has granted rehearing to reconsider the application of the law absent a corresponding challenge to the law itself. Because our rules prohibit a rehearing in this context, not surprisingly, Rogers's petition is also devoid of any such case.
Rogers's ten-page petition for rehearing arguing that harmless error should not apply advances the same argument this court has already considered. On appeal, the State argued that even if the victim's conviction was admissible under Arkansas Rule of Evidence 609, the circuit court's error was harmless because Rogers was not prejudiced. In attempting to reargue this issue, Rogers's petition cites, analyzes, and applies cases that he had ample opportunity to argue previously. Issues that are "repetitive of their original argument on appeal" are "an inappropriate subject for a petition for rehearing ." Fuller v. Johnson , 301 Ark. 14, 19-D, 784 S.W.2d 165, 166 (1990) (emphasis added); Butler Mfg. Co. v. Hughes , 292 Ark. 198, 206-A, 731 S.W.2d 214, 215 (1987) (explaining that a mere repeat of the original argument is an "inappropriate subject for a petition for rehearing"); Barnett v. Ark. Transport Co., Inc. , 303 Ark, 491, 800 S.W.2d 429 (1990) (stating, "arguments that are merely repetitious of those already considered by the court are inappropriate subjects for a petition for rehearing").
Finality matters. Appellate courts should be cautious when exercising their authority to rehear a settled case. To best understand the intention of Rule 2-3, one only needs to look at the rare occasions when the court has exercised its authority to rehear because of an error of law or fact. In Bailey v. Commerce Union Bank , this court granted rehearing to consider an error of law due to an unanticipated change in the law. See 223 Ark. 686, 692, 269 S.W. 2d 314, 318 (1954). After issuing its original majority opinion in Bailey , this court, in a separate case, overruled precedent. That case was the primary precedent relied on for the decision in Bailey . Id. Thus, in light of the unanticipated overruling of precedent, the court granted rehearing to determine whether the result in Bailey would change now that the law had changed. The court also allowed the parties to brief, for the first time, the issue of which state law applied. Id.
The court also granted rehearing in Wilkinson v. James , 164 Ark. 475, 479, 262 S.W. 319, 321 (1924). There, the court had overlooked a stipulation in the record and in briefing that affected the judgment. It granted rehearing to modify the judgment given the stipulation. Neither Bailey nor Wilkinson supports rehearing here. Until now, this court has not granted petitions for rehearing to reapply facts to settled law. Rogers's petition does not fit into the narrow class of cases that are appropriate for rehearing. For over one hundred years this court has refused to broaden its rules for petitions for rehearing.
For these reasons, I would deny Rogers's petition for rehearing.
Harmless Error
On rehearing, I would affirm Rogers's rape convictions for the same reasons the majority of the court explained in Rogers v. State , 2018 Ark. 242, 550 S.W.3d 387. There has been no change in the law nor the facts since we issued this opinion over 3 months ago.
It remains the law that when this court determines that a defendant was denied the opportunity to impeach a witness's credibility, it then considers whether that error was harmless. Winfrey v. State , 293 Ark. 342, 738 S.W.2d 391 (1987). This court has previously found harmless error in rape-conviction appeals. Pigg v. State , 2014 Ark. 433, at 5, 444 S.W.3d 863, 866 (holding on appeal that the court need not determine whether it was error to deny defendant the opportunity to question the victim's credibility when the alleged error would be harmless); Johnston v. State , 2014 Ark. 110, at 8, 431 S.W.3d 895, 899 (holding that erroneous admission of incestuous and pornographic pictures was harmless error in a rape conviction); Kelley v. State , 2009 Ark. 389, at 21, 327 S.W.3d 373, 384 (determining error was harmless in admitting two prior convictions involving indecency with a minor in a rape conviction); Buford v. State , 368 Ark. 87, 91, 243 S.W.3d 300, 303-04 (2006) (finding harmless error when the court erroneously allowed a child-abuse expert to testify as to the victim's credibility in a rape trial). But see Scamardo v. State , 2013 Ark. 163, at 9, 426 S.W.3d 900, 905 (denying a harmless-error argument when the circuit court refused to allow questioning regarding the victim's inconsistent statement as to whether the rape occurred). Here, the circuit court's error fits the harmless-error mold.
An error is harmless when the evidence of guilt is overwhelming, and the error is slight.
Scamardo , 2013 Ark. 163, at 9, 426 S.W.3d at 905. In Buford , the court found evidence of guilt overwhelming when the trial testimony included graphic detail of the rape, the victim testified to the rape, and another witness testified to witnessing the rape. Buford , 368 Ark. at 91, 243 S.W.3d at 303. Here, the evidence that Rogers raped LW is overwhelming. LW testified in specific detail to multiple occurrences of rape. TB testified that she observed a video of Rogers engaged in sex with LW. Moreover, all four victims described what this court emphasized in Kelley when affirming for harmless error as "remarkably similar conduct on the part of [the defendant]." Kelley , 2009 Ark. 389, at 20, 327 S.W.3d at 383. The girls similarly described their sexual encounters with Rogers, including the color of the condom, the dead-end road where he took two of them, and Rogers's suicide threats.
Finally, if Rogers experienced any prejudice, it was slight. Whether an error is slight hinges on the degree to which the defendant was prejudiced. Id. The proposed impeachment testimony of LW, unlike the victim's testimony in Scamardo , did not directly relate to the allegation at hand. Thus, any error was harmless.
For these reasons, I would affirm.
Goodson and Womack, JJ., join in this dissent.
I join Justice Wood's dissent regarding the majority's deeply improvident decision to grant rehearing in this case. I write separately to address Rogers's argument that the circuit court erred by refusing to allow impeachment of L.W. through her prior theft conviction. While the majority faithfully applies this court's established precedent that theft of property is a crime necessarily "involv[ing] dishonesty or false statement" for the purposes of Arkansas Rule of Evidence 609(a)(2), I believe that this precedent-longstanding though it may be-rests on thin reasoning and merits reexamination.
This court's current classification of theft of property goes back nearly four decades to Gustafson v. State , 267 Ark. 278, 590 S.W.2d 853 (1979). There, the court acknowledged that elements of Arkansas Rules of Evidence 608 and 609 are concerned with the distinction between crimes that involve dishonesty per se (e.g., "forgery, perjury, bribery, false pretense and embezzlement") and crimes that do not involve dishonesty per se (e.g., "murder, manslaughter or assault"). Id. at 288-89, 590 S.W.2d at 859. So far, so good. Without analysis, however, the court then reached the abrupt conclusion that "theft, as it is defined in the Arkansas Criminal Code, involves dishonesty." Id.
Then, just as now, the theft statute did not obviously support such a blanket conclusion. The current theft statute has remained substantively identical to the version cited in Gustafson . It identifies two methods of committing theft of property: "(1) tak[ing] or exercis[ing] unauthorized control over or mak[ing] an unauthorized transfer of an interest in the property of another person with the purpose of depriving the owner of the property; or (2) obtain[ing] the property of another person by deception or by threat with the purpose of depriving the owner of the property." Ark. Code Ann. § 5-36-103(a) (Repl. 2013). While the second method clearly concerns conduct that is dishonest per se, it is not at all clear that the first does. Consistently treating the first as the second, as we seem to do with theft, would require allowing the exception contained in 609(a)(2) to swallow the rule. The General Assembly's inclusion of deception as an element of the crime in section (2) while excluding it from section (1) should not be ignored. Furthermore, common sense tells us that there are many ways to commit theft that do not involve dishonesty in any direct way. For instance, the ne'er-do-well who snatches grandma's purse has behaved dishonorably , but not necessarily dishonestly.
Reviewing the typical application of Rule 609(a)(2), it becomes apparent that our treatment of theft is the outlier. West v. State , 27 Ark. App. 49, 766 S.W.2d 22 (1989), provides a useful example. The court of appeals noted that the offense at issue in that case-hindering apprehension-"may be committed in six different ways" of which "[o]nly one involves giving false information." Id. at 52, 766 S.W.2d at 24. Because only some instances of hindering apprehension would fall into the Rule 609(a)(2) exception, the party seeking to use the conviction for impeachment purposes was required to make an "offer of proof as to the factual circumstances involved" in the offense. Id. at 53, 766 S.W.2d at 24. We should consider whether attempts to impeach witnesses with testimony about their theft convictions should require this same minimal factual development. Rule 609(a)(2) is a cabined exception. It does away with both the severity requirements and the balancing of probative value against prejudicial effect typically required to admit convictions for impeachment purposes under Rule 609(a)(1). If a conviction falls under Rule 609(a)(2), it is automatically admissible to impeach credibility; this more permissive standard can be justified only if those convictions genuinely concern the witness's honesty.
Finally, I note that this court has accounted for the concerns I highlight above in its jurisprudence on Arkansas Rule of Evidence 608(b), creating a puzzling tension between two consecutive rules. Rule 608(b) concerns the introduction of instances of conduct "other than conviction of crime as provided in Rule 609" to demonstrate a witness's "character for truthfulness or untruthfulness." In Rhodes v. State , 276 Ark. 203, 634 S.W.2d 107 (1982), and subsequent cases, we have expressly limited Gustafson 's reach in the Rule 608(b) context. In Rhodes , we prohibited the introduction of past instances of shoplifting that did not result in convictions, reasoning that "while an absence of respect for the property rights of others is an undesirable trait, it does not directly indicate an impairment of the trait of truthfulness." Id. at 210, 634 S.W.2d at 111. This results in an uneasy status quo. Theft resulting in a conviction is treated as per se dishonest, and it is therefore admissible under Rule 609(a). Acts of theft not resulting in conviction are not considered probative of truthfulness, and they are therefore not admissible under Rule 608(b). Clever lawyering might construct a compelling difference between truthfulness and honesty, but the apparent strain is more than a plain reading of the rules can comfortably bear.
As outlined above, I believe that this court's precedents holding theft of property to be a crime of dishonesty per se were incorrectly decided. If that is the case, it follows necessarily that evidence of L.W.'s conviction was not automatically admissible under Rule 609(a), that Rogers was required to proffer the conviction to demonstrate that the underlying facts demonstrated dishonesty or false statement, and that the circuit court did not abuse its discretion on this evidentiary question.
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BRANDON J. HARRISON, Judge
Steve Arman, acting as the special administrator of the estate of his father, Philip Lewis Arman, appeals the Garland County Circuit Court's dismissal of his tort complaint against defendants Chi St. Vincent Hot Springs and Chi St. Vincent Hospital Hot Springs (collectively St. Vincent). He claims that he was properly clothed with the authority to file the tort complaint when he did so and that the circuit court erred by concluding otherwise. We reverse the dismissal, reinstate the complaint, and remand for further proceedings.
I.
Philip Arman died testate in May 2014, and his will was probated in Garland County. The docket number the circuit court clerk assigned to the estate was PR-14-486. The sole devisee under the probated will was the Philip L. Arman Trust. On 22 April 2015, the Garland County Circuit Court (Probate Division, Division 1) entered a final order of distribution. See Ark. Code Ann. § 28-53-104 (Repl. 2012). That order discharged the responsibilities of the estate's personal representative, who was Community First Trust Company. Community First Trust Company also served as trustee of the Philip L. Arman Trust. No party disputes that the April 22 order closed the estate. No one appealed the order. Consequently, the April 22 order judicially concluded matters related to Philip Arman's estate unless someone established a need to reopen the final order of distribution. Ark. Code Ann. § 28-53-105(a) (Repl. 2012).
After one year had passed, Steve Arman filed (on 12 May 2016) a petition to appoint a special administrator. The petition mistakenly stated that "no estate had been filed ... in relation to the decedent." The circuit court entered an order appointing Steve as special administrator the same day the petition was filed. The clerk assigned the petition case number PR-16-295 (Probate Division, Division 1). The cover sheet was filed on 11 May 2016 and had the box "original" checked-marked. The "Re-open" box, another option on the cover sheet, was not checked.
Seven days later, Steve filed an amended petition to have a special administrator appointed. In the amended petition, he offered the correction that "a Probate action was previously filed in this court as Case No. 26PR-14-486-1, and an Estate was opened and closed without liquidating the survival and wrongful death claims."
The corrective May 18 amended petition asked the circuit court to appoint Steve as special administrator pursuant to § 28-53-119 (Repl. 2012), which governs the reopening of estates. That same day, the circuit court entered an amended order appointing Steve as special administrator to "perform all necessary duties and acts required to liquidate the contingent claim of the Estate and statutory wrongful death beneficiaries[.]" The amended order also states that "no estate has been opened" and that
[t]he Court finds that The Special Administrator's basis for requesting appointment is that a previous probate action was opened and closed without liquidating the survival and wrongful death claims of the Estate and its statutory beneficiaries. An immediate need exists for the appointment of a special [administrator] for the reasons stated in the Amended Petition.
The crux of this appeal is whether Steve had the legal authority to commence a tort action in the civil division of the circuit court on behalf of Philip Arman's estate and for the benefit of the beneficiaries in the wrongful-death statute. St. Vincent has argued before, and does so here again, that Steve lacked authority to file the tort complaint because the May 18 amended order in the probate division did not properly reopen his father's probated estate, which had to be done before Steve could file the tort complaint in the civil division on May 19. Therefore, argues St. Vincent, the circuit court correctly dismissed the tort complaint. And the dismissal with prejudice was correct, St. Vincent says, because the applicable statute of limitations has run, meaning there is no time left for the tort suit to be properly (re)commenced. Steve, of course, completely disagrees.
II.
Was Steve properly clothed with the authority to file the tort complaint under the circumstances? On de novo review, we conclude that he was and now explain our answer. Johnson v. Greene Acres Nursing Home Ass'n , 364 Ark. 306, 309, 219 S.W.3d 138, 140 (2005) (standard of review).
Steve petitioned the probate division of the circuit court and cited section 28-53-119 as the authority by which the court could appoint him as a special administrator of his father's estate to pursue unliquidated tort claims that were not addressed before the estate was closed in 2015. Section 28-53-119(a) expressly allows a circuit court to reopen a probated estate for an interested party at any time when property of the estate is discovered, when a necessary act remains unperformed by the personal representative, or "for any other proper cause[.]" Ark. Code Ann. § 28-53-119(a) ; see also Ark. Code Ann. § 28-48-103(a) ("For good cause shown, a special administrator may be appointed[.]"). So the probate division of the circuit court had the authority to appoint someone for that limited purpose, and it did so. Ark. Code Ann. § 28-48-103(a) ; Douglas v. Holbert , 335 Ark. 305, 983 S.W.2d 392 (1998). (No one argues that Steve was not an interested person given the probate code definitions.)
St. Vincent's argument that the May 18 amended petition and the related amended order were not filed under the original probate case docket number does not strike us as an outcome-determinative point when deciding whether the original probate case was reopened. Our supreme court has defined "probate" divisions as meaning, in part, "cases relating to decedent estate administration." Ark. Sup. Ct. Admin. Order No. 14(1)(b) (2018). Both the original 2014 case and the 2016 petition to reopen the 2014 case were filed in the same division-the probate division of the Garland County Circuit Court. Moreover, court clerks, not the parties, assign case numbers. See Ark. Sup. Ct. Admin. Order No. 2(a) (2018); Ark. R. Civ. P. 3(c) (2018). Case numbers are a necessary administrator's tool, but they cannot decide the important procedural question here presented.
More important than a case number is that Steve's May 18 petition cited section 28-53-119, which is the statutory authority for reopening a probated estate. The amended petition also expressly stated that Steve had mistakenly believed that his father's estate had not been probated and that the amended petition was meant to correct that error. The circuit court admittedly did not use the magic word "reopen" in its May 18 amended order that appointed Steve Arman as special administrator; but it clearly enough intended to reopen the probate case to appoint and empower a special administrator to pursue statutory claims that had allegedly arisen under Arkansas law. The court's intent was clear enough, we believe, because it found in its May 18 amended order that Philip Arman's estate was opened and closed without resolving wrongful-death or survival claims and that a special administrator was necessary to pursue those unliquidated claims. Generally, probate orders that reopen estates are construed like any other instrument, and the primary goal is to carry out what the court intended. See Magness v. McEntire , 305 Ark. 503, 506, 808 S.W.2d 783, 784 (1991). We look to the order, the pleadings and other court papers, and any relevant evidence presented to glean the court's intent. David Newbern, John Watkins & D.P. Marshall Jr., 2 Arkansas Civil Practice & Procedure § 31:1 (5th ed. 2011) ("As a general rule, an ambiguous judgment is to be construed as is any other instrument to determine the court's intention, based on the language of the judgment, the pleadings, and the record.") (footnote omitted). Given the record before us, we are persuaded that the court intended to reopen the estate so that Steve could ultimately pursue unliquidated statutory claims. The order itself says as much:
The Court finds that The Special Administrator's basis for requesting appointment is that a previous probate action was opened and closed without liquidating the survival and wrongful death claims of the Estate and its statutory beneficiaries. An immediate need exists for the appointment of a special administer for the reasons stated in the Amended Petition.
This case is not like Prickett v. Hot Spring County Medical Center , 2010 Ark. App. 282, 373 S.W.3d 914, as St. Vincent argues. In Prickett , the circuit court had expressly kept an estate open for a limited time contingent upon certain acts being taken by the personal representative. The final order of distribution gave the personal representative six months in which to file a wrongful-death complaint; the estate was to close automatically if the complaint was not filed. For whatever reason, the personal representative did not file the complaint until more than one year had passed from the final order of distribution. The personal representative then filed the tort complaint before asking the court that had presided over the probate case to reopen it under section 28-53-119. Nothing like that happened here.
We now turn to another point St. Vincent made to the circuit court, which is that even if the estate was reopened then the wrong person filed the tort complaint. The circuit court dismissed Steve's claims "for the reasons stated in the defendants' briefing," and St. Vincent argued to the court that a dismissal was proper because only the trustee of the Philip L. Arman Trust had the right to file suit for the estate. To the extent the circuit court dismissed the tort complaint because Steve did not include Community First Trust Company as a party plaintiff, the decision was mistaken. Survival claims must be filed by the personal representative of the estate, or a special administrator, because the claim belongs to the decedent's estate and no one else. See Ark. Code Ann. § 16-62-101(a) (Repl. 2005); Smith v. St. Paul Fire & Marine Ins. Co. , 76 Ark. App. 264, 64 S.W.3d 764 (2001). Assuming the trustee was an interested person under the probate code and could have been appointed to pursue statutory claims, it did not do so, Steve did, and we know of no reason why it had to be "the trustee or bust," so to speak.
On the alleged wrongful-death claim, only the statutory beneficiaries may receive damages. And if every beneficiary does not join the complaint then the beneficiary class must be represented by a duly appointed representative. Ark. Code Ann. § 16-62-102. St. Vincent argued to the circuit court that the lawsuit was brought by less than all the heirs at law. St. Vincent argued this because it ties inexorably to its argument that Steve was not duly appointed as a representative of the beneficiary class; therefore, all the wrongful-death statutory beneficiaries had to join the tort complaint but did not do so. Because we have concluded that Steve is the duly appointed representative for the wrongful-death statutory beneficiaries, he is the proper party plaintiff in the tort case. Estate of Banks v. Wilkin , 101 Ark. App. 156, 272 S.W.3d 137 (2008). To the extent the circuit court dismissed the complaint based on St. Vincent's trustee argument, it erred.
III.
The circuit court was presented with an issue of first impression and decided to dismiss the tort complaint with prejudice. We, however, hold that the complaint should not have been dismissed. The dismissal is therefore reversed, the complaint reinstated, and the case remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Whiteaker and Murphy, JJ., agree.
He also stated that he was filing the amended petition pursuant to Ark. Code Ann. § 28-43-103, a reserved section that has no content.
Steve filed several amended complaints, but they are not at issue. The circuit court dismissed his wrongful-death and survival claims at different times, but the appealed order is a final one. | [
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WAYMOND M. BROWN, Judge
Appellants appeal from the circuit court's order denying their motion for reconsideration of its ruling that Justin Stanley's consent to adoption was required. On appeal, appellants argue that (1) Stanley did not meet any of the requirements of Arkansas Code Annotated section 9-9-206 so that his consent was not required; (2) Stanley did not meet his burden under the requirements of Arkansas Code Annotated section 9-9-207, even if registering with the putative father registry is a "similar acknowledgement of paternity" under Arkansas Code Annotated section 9-10-120(a) ; and (3) Stanley was not "thwarted" in his efforts to comply with the mandatory requirements of Arkansas Code Annotated section 9-9-206. We affirm.
Stanley and Taylor Schmidt, both residents of the State of Indiana, met on a dating app on June 6, 2016, and dated for a little over a month before ending the relationship. B.D. was conceived on or around June 9, 2016. Stanley learned that Schmidt was pregnant on July 10, 2016. Schmidt ceased communication with Stanley on July 19, 2016. Stanley attempted to contact Schmidt directly and indirectly through family members, ultimately learning in November 2016 that she had been incarcerated, though had not been advised where she was incarcerated.
On February 22, 2017, Schmidt told Stanley that she was giving B.D. up for adoption and had already picked out a family. Stanley registered with Indiana's putative father registry on February 24, 2017. On March 8, 2017, Stanley filed a verified petition to establish paternity in Ripley County Circuit Court in the State of Indiana. B.D. was born on March 9, 2017. The Hamilton Superior Court in Indiana entered a judgment and order terminating Schmidt's parental rights to B.D. pursuant to her signed consent on March 13, 2017. The order stated that the identity of B.D.'s putative father was "unknown, the biological mother having failed or refused to identify him." It gave legal custody of B.D. to Adoptions of Indiana, which has "full authority" under Indiana statute to authorize out-of-state placement and to permit prospective adoptive parents to return to their state with the child, after compliance with the Interstate Compact for the Placement of Children has been achieved. Adoptions of Indiana placed B.D. with appellants on the same day the order was entered and they returned to Arkansas.
On March 22, 2017, appellants filed a petition to adopt B.D. in Arkansas. They asserted they had cared for B.D. since his birth. The petition stated that Stanley was "not a suitable caretaker[,]" having "expressed a desire for the pregnancy to be terminated[,]" and that Schmidt had agreed to sign a waiver of service of summons and a consent to adoption. On the same date, appellants filed a petition for waiver of home study. On March 28, 2017, Schmidt filed a waiver of service and consent to adoption in which she stated that the document represented her "full and free consent to the adoption" based on her stated belief that said adoption was in B.D.'s best interest.
On April 17, 2017, Stanley filed an alternative answer to the appellants' petition for adoption denying that he was not a suitable caretaker as alleged and affirmatively asserting that he (1) was registered with Indiana's Putative Father Registry as of February 24, 2017; (2) had filed a verified petition to establish paternity in the appropriate Indiana circuit court on March 8, 2017; and (3) "[stood] able and ready to support and nurture" B.D. Accordingly, he requested denial and dismissal of the adoption petition.
Appellants filed an amended petition for adoption or guardianship, in the alternative, on May 5, 2017. Therein, they asserted a need for guardianship of B.D. due to his incapacity by virtue of his minority. Additional factual assertions not in the original petition were that Stanley (1) refused to provide any support for prenatal care of B.D. despite knowing Schmidt's location, (2) "engaged in a partying lifestyle and had sexual relations on a casual basis creating an environment which is unwholesome and unfit" for B.D., (3) was "engaged in a money-making scheme in an effort to profit off of the birth of the minor child[,]" and (4) abandoned B.D. within the meaning of Arkansas law. Stanley answered appellants' amended petition on May 9, 2017, responding to the appellants' assertions regarding adoption only; he failed to address any of the assertions in support of a guardianship.
Appellants then filed a second amended petition for adoption on June 2, 2017, in which they incorporated all the allegations from their March 22, 2017 petition and their May 5, 2017 amended petition. Additional facts not previously included pertained to their marriage and home. They attached an adoption home study and update as well as the Hamilton Superior Court's March 13, 2017 judgment and order.
Stanley's answers to appellants' June 5, 2017 requests for admission were filed on June 20, 2017. Of pertinence, Stanley (1) denied that he had no significant custodial, personal or financial relationship with B.D., averring that he had filed a petition for paternity prior to Schmidt leaving; (2) affirmatively pled that he had no personal relationship with B.D. because Schmidt was incarcerated from July 2016 to December 2016 and "refused to reveal her whereabouts" upon her release; (3) admitted his knowledge of Schmidt's intent to place B.D. for adoption, further averring that he "went to the putative father registry and tried to stop the adoption"; and (4) denied that he made no attempt to financially support Schmidt during the pregnancy.
Stanley filed a motion for directed verdict on July 10, 2017. He stated that he had filed a verified petition to establish paternity in an Indiana circuit court on March 8, 2017, prior to B.D.'s birth. Attached as an exhibit thereto were his DNA results, which confirmed a 99.99% probability that he is the biological father of B.D. Furthermore, he asserted that Schmidt "took off" with B.D. "and came to Arkansas not disclosing to [appellee] where she was living so that he could not exercise any rights to the child" in contravention of the Parental Kidnapping and Prevention Act and the Uniform Child Custody Jurisdiction and Enforcement Act. He alleged that Schmidt and appellants had "unclean hands." He sought denial of both the adoption and guardianship petitions and an award of custody and control of B.D. to himself.
Stanley filed a July 20, 2017 petition for custody or to transfer the case to Indiana where he was a citizen and resident. Included as an exhibit thereto was a July 18, 2017 Ripley County, Indiana, Circuit Court order establishing paternity and taking a custody decision under advisement pending briefing from the parties. The order noted that there were currently three cases pending between Indiana and Arkansas, all involving B.D. Appellants responded in opposition to Stanley's directed-verdict motion as premature on July 24, 2017. On July 27, 2017, Stanley filed a petition for registration of foreign judgment in Arkansas, specifically the Indiana circuit court's July 18, 2017 order establishing paternity; he also sought to transfer jurisdiction as a result of the July 18, 2017 order.
On September 21, 2017, appellants filed a motion for summary judgment and a separately filed brief in support, asserting their entitlement to a declaration that Stanley's consent was not necessary as a matter of law. They argued that Stanley's consent was not necessary because he failed to meet the express requirements of Arkansas law, specifically that Stanley (1) was not married to Schmidt at the time of conception, (2) was not B.D.'s father by adoption, (3) was not in physical custody at the time the petition for adoption was filed, (4) did not have an order granting him legal custody at the time the petition for adoption was filed, (5) had not been adjudicated by a court as B.D.'s legal father at the time the petition was filed and (6) did not have a significant custodial, personal or financial relationship with B.D. at the time the petition for adoption was filed.
Stanley answered in opposition, with a separately filed brief in support, on October 6, 2017. He asserted that Arkansas law required written consent of a man who has acknowledged paternity, which he had done having "registered at the putative father registry in two states" and been "found to be the father" of B.D. He argued that Arkansas law would not require his consent if he was either a putative father who either (1) signed an acknowledgement of paternity or (2) was listed on the putative father registry but failed to establish a significant, custodial, personal, or financial relationship with B.D. Accordingly, he argued that he "was deprived of the opportunity to establish a significant custodial, personal, or financial relationship with [B.D.] because the child was taken out of state, unbeknownst to him, when the child was four (4) days old and the petition for adoption was filed at the same time." He reasserted that appellants have unclean hands because:
[They were] asking the court to enter an adoption order when they (a) knew who the father was[,] (b) conspired to keep him from knowing when and where his child was[,] (c) had a homestudy [sic] performed prior to the mother giving birth in anticipation of adopting the child immediately after birth in order to deprive the father of an opportunity to have a relationship with his son[,] (d) scheduled a hearing on the termination of the mother's rights without notice to the known father four (4) days after the child was born[,] (e) took the child out of the state and moved him to Arkansas without advising the father instead of filing the petition in Indiana where the parties were located and the child was born[,] and (f) had family members refuse to tell him where his child was located.
Accordingly, Stanley sought an award of care, custody, and control of B.D.
On October 23, 2017, Stanley filed a petition for registration of foreign judgment, specifically the Indiana circuit court's October 17, 2017 order, which stated the following:
13. Adoptions of Indiana does not have the right to terminate the parental rights of Justin Stanley involuntarily and this Court has not and will not terminate Justin Stanley's parental rights involuntarily;
14. This Court, with the issuance of the order terminating the parental rights of Taylor Schmidt and granting custody to Adoptions of Indiana and the prospective adoptive parents, has fulfilled its limited duties in the life of the child;
15. There is no reason for this Court to hold a custody hearing regarding Stanley's parental rights as this court lacks jurisdiction to terminate his parental rights, as this is not the adoption court, it is not the proper court for Justin Stanley to contest the adoption proceeding;
16. The Motion to Dismiss is denied as this Court in this cause lacks jurisdiction to terminate Justin Stanley's parental rights as this cause is a voluntary termination proceeding brought pursuant to I.C. § 31-35-1-1 et. seq., and as such, I.C. § 31-35-2-6 is inapplicable to these matters. Further, Justin Stanley is not a party to the instant cause of action;
....
19. This Court declines to exercise further jurisdiction over the Child as both the paternity court and the adoption court are both better forums than this Court to determine custody and where the Child will be permanently placed[.]
Stanley again sought to transfer jurisdiction as a result of the October 17, 2017 order.
On November 3, 2017, Stanley filed a petition for registration of foreign judgment, specifically the Ripley County, Indiana Circuit Court's November 1, 2017 order awarding Stanley custody of B.D., which stated the following:
The Court has held two previous hearings on these matters. The Court did not make a custodial finding, instead the Court exercised caution while waiting for the resolution of the termination matter in Hamilton County, Indiana. The Court's reading of the Hamilton County Order dated October 17, 2017, indicate that the matter is closed. The Court, having heard the evidence and the arguments of counsel, now FINDS and ORDERS as follows:
1. .... Father is an Indiana resident. [B.D.] was born in the State of Indiana. Adoptions of Indiana is an Indiana Corporation.
2. On February 24, 2017, Father, Justin Stanley, registered on the Putative Father Registry.
3. On March 8, 2017, Father filed his Petition to Establish Paternity. This case, the paternity case in Ripley County, Indiana, was filed before the termination case and before the adoption case.
4. On March 9, 2017, [B.D.] was born.
5. On March 9, 2017, a Petition to Terminate Parental Rights was filed in Hamilton County, Indiana.
6. On March 13, 2017, the termination hearing was held and Mother's parental rights to [B.D.] were voluntarily terminated.... Father's rights were not terminated, nor legally could they have been.
7. Father was not given notice of the termination hearing even though he had registered on the Putative Father Registry several weeks earlier.
8. As part of the termination matter, Adoptions of Indiana was given legal custody of [B.D.]
9. That same date, March 13, 2017, just four days post-birth, [B.D.] was removed from the State of Indiana and taken to Arkansas.
10. On March 21, 2017, Father found out the child had been born.
11. On July 18, 2017, this Court found Justin Stanley to be the natural father of [B.D.]
12. Father had never met [B.D.] This is due to no fault of Father.
13. Father has sent monies, via check, to the pre-adoptive parents (Intervenors herein). These checks were not cashed.
14. Father sought visitation with [B.D.] His requests for visitation have been denied.
15. Father is employed and has a stable home. Although Father is not wealthy, he has means to provide for his son. Father also has the support of his extended family. Father's family accompanied him to all hearings.
16. Father, Justin Stanley, has taken all actions necessary under Indiana law to preserve his parental rights.
....
As all parties to this action are Indiana residents, as Indiana is the "home state" (UCCJA) and the "sending agency" (ICPC), and as Justin Stanley has been deprived of his fundamental right to raise his child, and as the Hamilton Superior Court has declined to exercise further jurisdiction, this Court finds it most appropriate for the paternity Court to establish custody.
Justin Stanley is the biological father and, therefore, enjoys the presumption of custody. Justin Stanley has not been shown to be unfit. The evidence presented at the hearing was to the contrary: Justin Stanley is a fit parent. When it was determined that Justin Stanley was the natural father of the child and had followed all dictates of Indiana law by timely filing with the Putative Father Registry, filed a Paternity petition before any other Court filings were made, continually pursued custody, and when this Court observes that it appears to be the only Court in Indiana with standing to make a present custodial determination there is a substantial change in circumstances mandating this Court to change custody to the natural father. Father is constitutionally entitled to an opportunity to develop a father/son relationship with his natural son and thereby entitled to custody of his son.
On November 6, 2017, Stanley filed a motion for full faith and credit and brief with regard to the Ripley County, Indiana Circuit Court's November 1, 2017 order granting Stanley custody of B.D. Appellants responded in opposition on November 7, 2017, asserting that Stanley had failed to follow appropriate procedures. Given that appellants had filed an appeal in Indiana from the November 1, 2017 order, they sought a stay of enforcement of the same, pursuant to Arkansas Code Annotated section 16-66-604(a) ; documentation of the appeal was attached thereto.
Appellants then filed a motion for reconsideration of the circuit court's "ruling at the trial held on November 7, 2017[,]" in which it concluded that "consent of [Stanley] was required under Arkansas Code Annotated § 9-9-206 [ (a)(2) ](G)." Appellants argued that said finding was erroneous because, their argument went, the subsection it was based on- Arkansas Code Annotated § 9-10-120(a) -"has no relevance to this case" and because, even if it were relevant, Stanley's consent would not be required because Stanley admitted that he did not have a required significant custodial, personal, or financial relationship with B.D. before the filing of the adoption petition. Stanley answered in opposition on November 14, 2017.
In the Sebastian County, Arkansas, Circuit Court's November 28, 2017 order denying motion for reconsideration and findings of fact, it made the following findings:
1. That the father Respondent, Justin Stanley, resides in Milan, Indiana, and has never been in the state of Arkansas prior to this hearing;
2. That Respondent, Taylor Schmidt, mother of the child in question, was his ex-girlfriend and also resided in [Indiana];
3. That they had a sexual relationship after meeting through the app "meetme" in which Respondent, Taylor Schmidt, conceived child;
4. That their relationship lasted approximately one (1) month;
5. That after that period Respondent, Taylor Schmidt, was incarcerated in [Indiana];
6. That around July 10th Respondent, Justin Stanley, was told via facebook that Respondent, Taylor Schmidt, was pregnant;
7. That Respondent, Taylor Schmidt, stopped communication with Respondent, Justin Stanley, around July 19, 2016, after her incarceration; that Respondent, Justin Stanley, did not see Respondent, Taylor Schmidt, after her incarceration until the Court hearing in Ripley County;
8. That Respondent, Justin Stanley, tried to find and continued to communicate with her via facebook and was able to get a hold of a family member sometime in November, 2016;
9. That Respondent, Justin Stanley, consulted an attorney sometime around Christmas, 2016;
10. That Respondent, Justin Stanley, was told sometime in February, [sic] 2017, that Respondent, Taylor Schmidt, wanted to put the child up for adoption;
11. That thereafter, Respondent, Justin Stanley, registered himself on the Putative Father registry list in Ripley County, Indiana, and filed a paternity suit;
12. That Respondent, Justin Stanley, was not told of Respondent, Taylor Schmidt's, location or when she was to be released of her incarceration;
13. Respondent, Justin Stanley, did not learn of the child's birth until after the child was brought to the State of Arkansas;
14. That thereafter Respondent, Justin Stanley, registered with the Arkansas Putative Father Registry;
15. That the adoptive parents are residents of the Greenwood District of Sebastian County, Arkansas;
16. That Respondent, Justin Stanley, was never informed of the whereabouts of the child or allowed any contact with the child;
17. That Respondent, Justin Stanley, offered through his attorney's [sic] to pay child support for the minor child but was refused;
18. That Respondent, Justin Stanley, was ordered to pay for medical expenses in Indiana and has attempted to do so but was not allowed to obtain information from the hospital in order to do so because he was not a custodian;
19. That during the pregnancy Respondent, Justin Stanley, and Respondent, Taylor Schmidt, discussed the pregnancy and he told Respondent, Taylor Schmidt, that he wanted to be there for the child and they discussed the name of the child;
20. The Respondent, Justin Stanley, discussed his concern for Respondent, Taylor Schmidt's, health and asked her to stop smoking pot, smoking cigarettes and drinking;
21. That Respondent, Justin Stanley, and Respondent, Taylor Schmidt, communicated consistently on facebook while they were in a relationship;
22. The Respondent, Justin Stanley, testified that while Respondent, Taylor Schmidt, never asked for anything to be provided during her pregnancy he asked her through facebook if she needed anything but Respondent, Taylor Schmidt, never responded back;
23. The Respondent, Justin Stanley, still tried to communicate with Respondent, Taylor Schmidt, after she stopped talking to him;
24. The Respondent, Justin Stanley, was not told where she was incarcerated and he did not hear from any family member until he contacted her aunt on facebook in November, 2016; The Respondent, Mr. Stanley, was not told whether or not the child was born while the Respondent, Taylor Schmidt, was incarcerated;
25. The Respondent, Justin Stanley, has a job, a car, a place to live and insurance available for the child as well as a plan in place for support of the minor child; he has no criminal history and neither do any of his family members;
26. The Respondent, Justin Stanley, does not pay rent as he is living with his mother and father, brother and girlfriend; that he trims trees for a living and has year-round employment; that he has degenerative back disease and a bulging disc for which he takes hydrocodone and has done so for approximately three (3) years; That Respondent, Justin Stanley, also has high blood pressure for which he takes medication;
27. The Respondent, Justin Stanley, has saved approximately $ 350.00 that he has put in a separate account for the minor child;
28. The Respondent's mother, Mrs. Stanley, testified that she would be able to help take care of her grandson and that she was in good health; that her son had a bad back but that it never prevented him from engaging in regular activities or working; that she has no concerns as a grandmother about the care her son could provide to the minor child;
29. Mrs. Stanley testified that the Respondent, Justin Stanley, has appeared at three court hearings in Ripley County, Indiana, regarding the child and had an attorney appear at hearings in Hamilton County, Indiana on their behalf; that a TPR petition had been filed in Hamilton County, Indiana that was denied;
30. That Respondent, Justin Stanley, filed for custody in Arkansas as a counter petition to the adoption petition filed herein;
31. Mrs. Stanley testified that she was at the hearing on paternity in Ripley County but Respondent, Taylor Schmidt, was not and the putative adoptive parents were present through an attorney;
32. Petitioner, Mr. Daily, testified that he and his wife were residents of Greenwood, Arkansas, since 2011 and that they had been married since 2010; that they have had custody of the minor child since March 11, 2017, when Respondent, Taylor Schmidt, signed over her legal rights while she was still in the hospital; that Petitioner, Ms. Daily, did not leave Indiana with the minor child until March 13, 2017, when legal custody was placed with them via court order from Indiana;
33. Petitioner, Mr. Daily, testified that he has never refused contact with the father Respondent, Justin Stanley, and that that petition for adoption was filed after the child had been in the State of Arkansas for approximately four (4) days;
CONCLUSIONS OF LAW
34. According to Arkansas Code Annotated § 9-9-206 the written consent for an adoption of a minor child must be obtained by the father of the minor child if: (a)(2)(G) he has acknowledged paternity under Arkansas Code Annotated § 9-10-120(a).
35. Arkansas Code Annotated § 9-10-120(a) - the paternity statute - states that "A man is the father of a child for all intents and purposes if he and the mother execute an acknowledgment of paternity of the child pursuant to§ 20-18-408 or § 20-18-409, or a similar acknowledgment executed during the child's minority." The Court finds that registering, prior to the adoption petition being filed, is a "similar acknowledgment of paternity";
36. The Respondent, Justin Stanley, registered at the putative father registry prior to the Petition for Adoption being filed in March 22, 2017;
37. As per Arkansas Code Annotated § 9-9-207, the [appellee], Justin Stanley's consent to the adoption would not be required if: (10) a putative father of a minor who signed an acknowledgement of paternity but who failed to establish a significant custodial, personal, or financial relationship with the juvenile prior to the time the petition for adoption is filed; or (11) a putative father of a minor who is listed on the Putative father Registry but who failed to establish a significant custodial, personal, or financial relationship with the juvenile prior to the time the petition for adoption was filed.
....
41. .... this Court finds that Respondent, Justin Stanley's, efforts were enough to establish a significant custodial, personal or financial relationship in light of Respondent, Taylor Schmidt's, thwarting of his efforts.
42. Respondent, Taylor Schmidt, stopped communicating with Respondent, Justin Stanley, around July 19, 2017, and he did not find out where his child was located until the adoptive parents filed for adoption; that the child was removed from the State of [Indiana] approximately 4 days after he was born; that during the pregnancy the Respondents, Justin Stanley and Taylor Schmidt, discussed the pregnancy and the naming of the child, that Respondent, Justin Stanley, told Respondent, Taylor Schmidt, he wanted to be there for the child and he attempted to continue to communicate and ask if she need anything and tried to contact her family after she had stopped responding to his facebook posts;
43. That Respondent, Justin Stanley, registered with the putative father registry in Indiana and Arkansas; that besides this hearing on adoption/custody he participated in three hearings in Ripley County, Indiana, with counsel and that he was represented by counsel in hearings in Hamilton County, Indiana;
44. That the mother, Respondent, Taylor Schmidt, was incarcerated for most of her pregnancy but that the father, Respondent, Justin Stanley, opened an account (post adoption filing) for the minor child and that he asked her if she needed anything but that she would not communicate with him. ,
Accordingly, the circuit court denied appellants' amended petition for adoption or in the alternative for guardianship, which they filed on May 5, 2017; denied the appellants' September 21, 2017 motion for summary judgment; denied Stanley's July 10, 2017 motion for directed verdict; granted Stanley's July 20, 2017 petition for custody; and denied appellants' motion for reconsideration. This timely appeal followed.
While we review adoption proceedings de novo on the record, it is well settled that the decision of the trial court will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the trial court to judge the credibility of the witnesses. A finding is clearly erroneous when, although there is supporting evidence in the record, the appellate court viewing the entire evidence is left with a definite and firm conviction that a mistake has been committed. Adoption statutes are strictly construed, and a person who wishes to adopt a child must prove that consent is unnecessary by clear and convincing evidence.
This court addresses appellants' first and second arguments together. Appellants have argued that Stanley did not meet any of the requirements of Arkansas Code Annotated section 9-9-206 so that his consent was not required and that the circuit court "misinterpreted" Arkansas Code Annotated section 9-9-206(a)(2)(G). Appellants also argue that Stanley did not meet his burden under the requirements of Arkansas Code Annotated section 9-9-207, even if registering with the putative father registry is a "similar acknowledgement of paternity" under Arkansas Code Annotated section 9-10-120(a). This court need not address either argument.
While the circuit court did find that "registering, prior to the adoption petition being filed, is a "similar acknowledgement of paternity[,]" it also found that Stanley's "efforts were enough to establish a significant custodial, personal or financial relationship in light of Respondent, Taylor Schmidt's, thwarting his efforts." Accordingly, the circuit court also found that Stanley's consent was required pursuant to Arkansas Code Annotated section 9-9-206(a)(2)(F). Appellants do not address this ground for requiring Stanley's consent. When an appellant fails to attack the circuit court's independent, alternative basis for its ruling, we will not reverse. Therefore, we affirm both points.
Appellants' final argument is that Stanley was not "thwarted" in his efforts to comply with the mandatory requirements of Arkansas Code Annotated section 9-9-206. Appellants specifically argue that Stanley "did not do nearly enough to try and establish a relationship thereby requiring his consent to adoption and the birth mother did not thwart his efforts." We look to the circuit court's findings.
The circuit court specifically found that (1) Schmidt told Stanley she was pregnant around July 10, 2016; (2) Schmidt ceased communication with Stanley once she became incarcerated around July 19, 2016; (3) Stanley attempted to locate Schmidt by contacting her family members on Facebook but was not told of her location or expected date of release; (4) Schmidt told Stanley "sometime in February 2017" that she wanted to put B.D. up for adoption; (5) Stanley registered himself on Indiana's putative father registry thereafter and filed a paternity suit; (6) Stanley learned of B.D.'s birth upon learning that B.D. had been taken to Arkansas, where Stanley then registered himself on the putative father registry; (7) Stanley was never informed of the whereabouts of or allowed to contact B.D.; (8) Stanley offered to pay child support through his attorney but it was refused; (9) Stanley attempted to pay medical expenses for Schmidt as ordered by the Indiana courts but was not allowed to do so; (10) Stanley discussed wanting to "be there for the child" and the naming of the child with Schmidt while she was pregnant; (11) Stanley expressed concern for Schmidt's health; (12) Stanley asked Schmidt if she needed anything while she was pregnant, via Facebook, but never received a response; (13) Stanley continued attempting to communicate with Schmidt even after she ceased communicating with him; (14) Stanley had a job, a car, a place to live and insurance available for B.D. as well as a "plan in place for support" of B.D.; and (15) Stanley had saved $ 350.00 in a separate account for B.D. This court holds that there was no error in the circuit court's findings. The circuit court clearly did not agree with appellants' assertion that Stanley "did not do nearly enough[.]" It is well settled that we will not reweigh the evidence on appeal, and credibility determinations are left to the circuit court. We find no error.
Affirmed.
Gladwin and Murphy, JJ., agree.
(Repl. 2015).
(Repl. 2015).
(Repl. 2015).
Schmidt became incarcerated on this date.
Schmidt was incarcerated from July 2016 through December 2016.
Appellants had been permitted by Adoptions of Indiana to remove B.D. from Indianapolis, Indiana, where he had been born, to their home in Sebastian County, Arkansas.
Appellants completed a home study on July 16, 2015, which was updated on October 8, 2015, to show that appellants have been approved to adopt. This appears to be required prior to being approved to adopt in Indiana.
Though Stanley references Schmidt leaving, the brief does not show that she ever left Indiana.
This language tracks that of Arkansas Code Annotated section 9-9-206(a)(2)(A)-(F). It does not include Arkansas Code Annotated section 9-9-206(a)(2)(G).
See Ark. Code Ann. § 9-9-207(10) & (11).
(Emphasis in original.)
The petition itself refers to the Indiana circuit court's July 18, 2017 order-which was the subject of a prior foreign-judgment-registration petition-but the attached judgment order was filed on November 1, 2017. Accordingly, we treat this as a clerical error.
(Emphasis in the original.)
(Repl. 2005).
The order erroneously stated Illinois.
The order erroneously stated Illinois.
The order erroneously stated Illinois.
(Emphasis in original).
A nunc pro tunc order denying motion for reconsideration and findings of fact was filed on December 15, 2017. There is no discernible difference from the November 28, 2017 order.
This court notes that while the circuit court states that it is denying appellants' May 5, 2018 amended petition, its order specifically addresses statements and/or arguments that were only made in the second amended petition of June 2, 2017. Accordingly, we treat the circuit court's misidentification as a scrivener's error.
Davis-Lewallen v. Clegg , 2010 Ark. App. 627, at 5, 378 S.W.3d 185, 189 (citing Moreno v. Knowles , 2009 Ark. App. 164, 2009 WL 619185 ).
Id. , 2010 Ark. App. 627, at 5-6, 378 S.W.3d 185, 189 (citing Shields v. Kimble , 2010 Ark. App. 479, 375 S.W.3d 738 ).
Racine v. Nelson , 2011 Ark. 50, at 11, 378 S.W.3d 93, 100 (citing Powell v. Lane , 375 Ark. 178, 289 S.W.3d 440 (2008) ).
Bayron v. Ark. Dep't of Human Servs. , 2012 Ark. App. 75, at 7, 388 S.W.3d 482, 487 (citing Pugh v. State , 351 Ark. 5, 89 S.W.3d 909 (2002) ; see Hill v. Powell , 2016 Ark. App. 123, at 7, 2016 WL 739888 ("Hill's first argument cannot be examined because she did not challenge both independent grounds on which the circuit court relied in making its decision to deny her adoption petition.") ).
(Emphasis in original).
Blasingame v. Ark. Dep't of Human Servs. , 2018 Ark. App. 71, at 6, 542 S.W.3d 873, 877 (citing Newman v. Ark. Dep't of Human Servs. , 2016 Ark. App. 207, 489 S.W.3d 186 ). | [
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DAVID M. GLOVER, Judge
Irene Murphy filed a complaint in the Circuit Court of Jefferson County, alleging that Union Pacific Railroad Company (Union Pacific) negligently failed to protect her husband, Alton Murphy, from exposure to toxic chemicals during his employment with the railroad. The complaint alleged that the railroad's negligence caused Mr. Murphy to develop multiple myeloma, a rare form of blood cancer, leading to his death in 2014. Union Pacific filed a motion for summary judgment, arguing that Mr. and Mrs. Murphy previously released the railroad from any further liability for toxic exposure as part of a negotiated settlement of another claim for a lung injury in 2007. The circuit court agreed and granted Union Pacific's motion.
Irene now appeals the judgment, arguing that it should be reversed because the prior release is void under section 5 of the Federal Employers' Liability Act (FELA), which prohibits contracts that enable railroads "to exempt [themselves] from any liability[.]" 45 U.S.C § 55. According to Irene, the release is void under FELA because it goes beyond the injury and risk of future injury that were known to her and Mr. Murphy at the time they negotiated the release.
I. Facts and Procedural History
Alton Murphy worked for Union Pacific for thirty years. He worked as a manual laborer, then as a machine operator, before his retirement in 2002. In 2006, Mr. Murphy pursued a claim against the railroad, presumably alleging that his exposure to toxic substances during his employment caused him to suffer from pneumoconiosis, a lung disease that caused him shortness of breath. The claim apparently never went to suit. Mr. Murphy and Irene settled the claim with Union Pacific in 2007. In exchange for $ 20,000 the Murphys both signed a release that, in pertinent part, provided as follows:
DEFINITIONS
3. "Occupational Exposures," as used herein, shall mean and include any and all exposures to which ALTON MURPHY was exposed as an employee of Union Pacific. Occupational Exposures includes any and all exposures by any method, including exposures by breathing, touching, ingesting, or otherwise. Occupational Exposures includes any and all exposures to toxic materials, metals, or chemicals, including without limitation asbestos, dusts, fumes, vapors, smells, gases, fuels, combustion products and by-products, exhausts, solvents, cleaners, benzene, vinyl chloride, toluene, pesticides, herbicides, weed defoliants, lubricants, paints, paint thinners, silica and/or any other cancer causing agents, whether alleged or not alleged, caused by or contributed by or in any way the legal responsibility of [Union Pacific].
RECITALS
1. ALTON MURPHY filed a claim against Union Pacific seeking compensation as a result of ALTON MURPHY 's alleged diseases ... from Occupational Exposures while he was employed by Union Pacific.
2. Union Pacific, without in any way admitting liability with reference to the claim asserted by MURPHY , desire[s] to reach full and final compromise of all claims arising from ALTON MURPHY 's alleged injury from Occupational Exposures, including any cancers, lung-related diseases and/or death, while ALTON MURPHY was employed by Union Pacific.
3. MURPHY desires to reach full and final compromise of all claims asserted against Union Pacific in the above-referenced cause.
AGREEMENT
1. Union Pacific is paying MURPHY the sum of [$ 20,000]. MURPHY agrees to accept said sum as full and complete compromise of any and all claims which have accrued or which may hereafter accrue in favor of MURPHY and against Union Pacific as a result of ALTON MURPHY 's alleged injury, including any cancers, lung-related diseases, and/or death, from Occupational Exposures while ALTON MURPHY was employed by Union Pacific. MURPHY hereby acknowledges receipt of payment by execution of this Settlement Agreement and Release, and agrees that such consideration is being paid and will be accepted in full, final, and complete compromise and settlement of all claims, demands, actions, injuries, damages, costs, and compensation of any kind or nature whatsoever arising out of the subject matter of this Settlement Agreement and Release, being any Occupational Exposure, whether known or unknown, whether or not ascertainable at the time this Settlement Agreement and Release is executed.
2. MURPHY hereby expressly agrees to cause the dismissal with prejudice of the above-described suit against Union Pacific, and to hold forever harmless Union Pacific against any and all claims, demands, actions, damages, costs, and compensation of any kind brought at any time by any person or party against Union Pacific for the purpose of enforcing any claims resulting from ALTON MURPHY'S alleged Occupational Exposures while ALTON MURPHY was employed by Union Pacific or damages and expenses arising as the result of said exposure, including but not limited to any claims asserted by persons claiming to be heirs of ALTON MURPHY .
3. MURPHY hereby releases any and all claims, demands, actions, damages, costs, and compensation of any kind or nature whatsoever against Union Pacific, accruing to MURPHY as a result of ALTON MURPHY 's alleged injury from his Occupational Exposures or the consequences flowing therefrom, including any cancers, lung-related diseases, and/or death. MURPHY further agrees and covenants not to institute any action at law or in equity against Union Pacific for any claim, demands, actions, damages, costs, and compensation of any kind as a result of ALTON MURPHY 's Occupational Exposures while ALTON MURPHY was employed by Union Pacific, or the consequences flowing therefrom, including but not limited to any claim for medical bills, or health care, lost earning power, loss of consortium, mental anguish, pain, and suffering, wrongful death, contribution and/or indemnity, wrongful death, and any other claims now or later existing. Union Pacific may plead this agreement as a complete defense to any action or proceeding brought by MURPHY on the basis of the claims described above, and in breach of this covenant.
Mr. Murphy was diagnosed with multiple myeloma six years after signing the release, and he died on July 9, 2014. Irene Murphy, as her husband's personal representative, filed a complaint in the circuit court on February 24, 2016, alleging that Union Pacific negligently failed to protect Mr. Murphy from exposure to various toxic substances during his employment, proximately causing his multiple myeloma and premature death.
Union Pacific responded with a motion for summary judgment based on the prior release that the Murphys executed in 2007. Union Pacific argued that while section 5 of FELA prohibits contracts that "enable any common carrier to exempt itself from any liability," the Supreme Court and other federal courts have upheld releases entered into as a part of settlement agreements-including those that settle liability for future injuries. Relying on a case from the United States Court of Appeals for the Third Circuit, Wicker v. Consolidated Rail Corp. , 142 F.3d 690 (3d Cir. 1998), Union Pacific argued that such releases are valid when they are "limited to those risks which are known by the parties at the time the release is negotiated" or, in other words, when their language
spells out the quantity, location, and duration of the potential risks to which the employee has been exposed-for example toxic exposure-allowing the employee to make a reasoned decision whether to release the employer for future injuries or specifically known risks.
Id. at 701-02. According to Union Pacific, the language of the 2007 release met that standard because, inter alia , it only "cover[ed] known injuries and known risks of injury [,]" related to toxic exposure, including cancer.
Irene argued that summary judgment was not appropriate because, according to Wicker , the language of the release is not conclusive evidence of the risks known to the parties at the time they negotiated the release. She claims that is particularly true where, as here, the language of the release is boilerplate; containing a "laundry list" of toxic substances to which Mr. Murphy may-or may not-have knowingly been exposed. She further noted that the release fails to specifically list "multiple myeloma" among the risks of toxic exposure.
Irene also argued that the release did not demonstrate a negotiation of known risks, as it must under Wicker , because it went well beyond the risks associated with the toxic exposure and lung injury that Mr. Murphy claimed in 2006. Irene offered two affidavits in support of that argument. One of the affidavits was executed by J. Kirkland Sammons, the lawyer who represented Mr. Murphy in the earlier claim against Union Pacific. In relevant part, Mr. Sammons stated that he represented Mr. Murphy "in a claim against Union Pacific Railroad Company for asbestosis, a non-malignant disease resulting from occupational exposure to asbestos," and "[a]t the time he signed the release [in] 2007, the only claim or injury that Mr. Murphy had asserted against Union Pacific was his claim for asbestosis." Irene also submitted her own affidavit in which she stated that "[a]t no time did our attorney ... or anyone from the railroad tell us that my husband ran the risk of developing multiple myeloma due to his exposure to diesel exhaust and other toxic chemicals on the railroad due to his many years of exposure." Irene's affidavit also alleged that "if [she] or [her] husband knew that he would develop multiple myeloma almost six years after the signing of this Release, he never would have settled the claim for the sum of $ 20,000.00."
Union Pacific subsequently filed motions to strike both affidavits that Irene submitted in opposition to its motion for summary judgment. The railroad argued that neither affidavit complied with Arkansas Rules of Civil Procedure 56(e) because each contained conclusions of law and alleged facts based on hearsay. Union Pacific also argued that documents that Mr. Sammons prepared in 2006-particularly a claim questionnaire acknowledging Mr. Murphy's exposure to other toxic substances-demonstrate that Mr. Murphy's earlier claim was not limited to asbestosis, as he alleged in his affidavit.
The circuit court granted Union Pacific's motion for summary judgment on June 28, 2017. Applying our rules of statutory construction to section 5 of FELA, the circuit court found that the 2007 release was valid because it did "not exempt [Union Pacific] from any and all liabilities," but was "limited to injuries caused by Occupational Exposures." The circuit court also found that portions of Irene's affidavit, "if she attempted to present [it] as testimony at trial, would be held inadmissible." Consequently, the court did not consider "the portions of the affidavit that related to Irene Murphy's opinion of Alton Murphy's knowledge, motive, intentions, or understanding of the Release/Agreement." The circuit court also did not consider "the entire content" of Mr. Sammons's affidavit because it was based on opinion; contained statements barred by the attorney-client privilege; failed to comply with Rule 56(e) ; and was "not trustworthy."
Irene now appeals the circuit court's order, raising two arguments on appeal. First, she argues that the circuit erred by granting Union Pacific's motion for summary judgment based on the prior release. According to Irene, the release fails to meet two distinct standards for determining when a release is valid under section 5. The release, she asserts, does not meet the "known risk" test that the Third Circuit developed in Wicker because it contains a "laundry list" of hazards without respect to whether Mr. Murphy was aware that he was exposed to them. She also claims the release fails to include "multiple myeloma" among the risks of toxic exposure. And she argues that the release fails to meet the "known injury" standard that the Sixth Circuit developed in Babbitt v. Norfolk & Western Railway Co. , 104 F.3d 89 (6th Cir. 1997), which, unlike Wicker 's "known risk" standard, limits valid releases to those that release liability for injuries that have actually accrued when the release is executed. Irene asserts the 2007 release, which releases Union Pacific from liability for "cancer ... and/or death," was not limited to the lung injury that Mr. Murphy claimed in 2006; therefore, she says the release is also invalid under Babbitt 's "known injury" test.
As between Babbitt and Wicker , Union Pacific confines its response to Wicker , arguing that the toxic substances listed in the release are among the substances that Mr. Murphy listed on the questionnaire he filled out in 2006, demonstrating that those alleged exposures were within the scope of his prior claim. Union Pacific further argues that "cancer" and "death" were mentioned eleven times in the release; therefore, multiple myeloma, a form of cancer, was a "known risk" when Mr. and Mrs. Murphy executed the release. Union Pacific also points to written advertisements, which Mr. Murphy's prior FELA counsel had disseminated in the past, that solicited former railroad employees. In those solicitations, multiple myeloma is referred to as a potential injury related to alleged toxic exposures.
Finally, Irene argues that the circuit court erred by refusing to consider any part of Mr. Sammons's affidavit.
II. Standards of Review
A circuit court may grant summary judgment only when it is apparent that no genuine issues of material fact exist requiring litigation and that the moving party is entitled to judgment as a matter of law. Blevins v. Hudson , 2016 Ark. 150, at 3, 489 S.W.3d 165, 167. Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Richardson v. Union Pac. R.R. Co. , 2011 Ark. App. 562, at 2, 386 S.W.3d 77, 79. In doing so, this court views the evidence in the light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. The burden is not on the moving party to demonstrate that every fact is undisputed but to show that reasonable minds could not differ as to the conclusion to be drawn from them. Blevins , 2016 Ark. 150, at 4, 489 S.W.3d 165, at 167.
Additionally, "FELA provides for concurrent jurisdiction of the state and federal courts." Richardson , 2011 Ark. App. 562, at 3, 386 S.W.3d at 79. "Although state courts use state procedural rules," substantive issues, such as the validity of the release in this case, "are governed by FELA." Id. , at 3, 386 S.W.3d at 79-80. The employee carries the burden of demonstrating that a prior release is invalid under section 5 of FELA. See Callen v. Pa. R.R. Co. , 332 U.S. 625, 630, 68 S.Ct. 296, 92 L.Ed. 242 (1948).
III. Discussion
In 1908, Congress enacted FELA "to ensure that [railroad] employees' suits would not be defeated by the same devices which Congress perceived to have been used in the immediate past by the railroads to avoid liability." Wicker , 142 F.3d at 696 (internal quotation marks omitted). Congress particularly noted that many railroads, usually as a condition of employment, "insist[ed] on a contract with their employees, discharging the company from liability for personal injuries." Id. Section 5 of FELA "was passed specifically to remedy [that] problem," Wicker , 142 F.3d at 696, and now codified at 45 U.S.C. § 55, it provides in relevant part that "[a]ny contract, rule, regulation, or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void."
Releases like the one at issue in this case, however, are not necessarily void under FELA. In 1948, the United States Supreme Court held that a release that was executed in exchange for consideration of $ 265 to settle a worker's claimed back injury did not violate section 5. See Callen , 332 U.S. at 631, 68 S.Ct. 296. According to the court,
[I]t is obvious that a release is not a device to exempt from liability but is a means of compromising a claimed liability and to that extent recognizing its possibility. Where controversies exist as to whether there is a liability, and if so for how much, Congress has not said that parties may not settle their claims without litigation.
As we note above, the Sixth Circuit and the Third Circuit have developed different standards for determining whether a release is valid under section 5. In Babbitt , 104 F.3d at 89, 93, the Sixth Circuit adopted a so-called "known injury" standard, holding that a release is valid if it is limited to the specific injury in controversy.
The Third Circuit, on the other hand, has adopted a more flexible standard, upholding releases of liability for future injuries if the risk of those injuries is known to the parties at the time they negotiate the release. See Wicker , 142 F.3d at 702. Under this "known risk" standard, the language releasing Union Pacific from liability for the future risks of toxic exposure would not violate section 5 if Mr. and Mrs. Murphy knew, at the time they executed the release, that Mr. Murphy was at risk of developing future "cancers ... and/or death" from the "Occupational Exposures" listed in the release.
We choose to follow the majority of state and federal courts that have held Wicker is the better standard. Babbitt 's bright-line rule limiting valid releases to accrued claims "requires an unrealistic view on how parties compromise claims" and may have "a chilling effect on the resolution or compromise of any claims." Oliverio v. Consol. Rail Corp. , 14 Misc.3d 219, 822 N.Y.S.2d 699, 701-02 (N.Y. Sup. Ct. 2006). That is particularly true
with respect to claims based upon exposure to [toxic substances], where effects of the exposure may be latent for a considerable period of time. If a new claim were permitted for each and every new manifestation of the [toxic] exposure, regardless of the extent of the parties' awareness of such risks, there would be no incentive on the part of the railroad defendant to ever compromise such claims. This result would not further the public policy of encouraging settlement of claims.
Id. at 702. We also agree that the known-risk approach in Wicker "provides a [more] realistic view of compromises and releases" because it "permits enforcement not only for the specific injuries already manifested at the time of its execution but also any risks of future injury which the parties specifically contemplated in its execution, so long as those risks are properly within the ambit of the claim compromised." Id.
It is not evident from the record that the circuit court applied Wicker when it determined that the 2007 release was valid under section 5 of FELA. Accordingly, the circuit court's order granting summary judgment is reversed, and the case is remanded for a determination of whether the 2007 release is valid under Wicker 's known-risk standard, applying it to the record that the parties have already developed.
For her remaining point of appeal, Irene contends the circuit court erred in refusing to consider Mr. Sammons's affidavit in deciding whether to grant summary judgment. The circuit court's stated bases for rejecting the affidavit are somewhat troublesome. With our reversal of the grant of summary judgment and our remand for further proceedings consistent with this opinion, we direct the circuit court to reconsider the appropriateness of the Sammons affidavit in deciding Union Pacific's summary-judgment motion under Wicker .
The circuit court set forth four bases for rejecting the Sammons affidavit, reasoning 1) it was comprised of Sammons's opinions on how the court should rule; 2) it did not comply with Rule 56(e) of the Arkansas Rules of Civil Procedure ; 3) Sammons was not trustworthy; and 4) it contained statements that, absent a waiver of attorney-client privilege from Alton Murphy, violated the attorney-client privilege. Bases 1) "opinions" and 2) " Rule 56(e)" are part and parcel of the same rationale. Arkansas Rule of Civil Procedure 56(e) provides in part that "[s]upporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein." The circuit court found that the Sammons affidavit expressed opinions rather than facts. Our review of the affidavit convinces us the circuit court was mistaken in this conclusion. We conclude the affidavit contained statements of fact-not opinion-and they were based on Sammons's personal knowledge. We therefore further conclude that the requirements of Rule 56(e) were satisfied. We express no opinion, however, on whether the affidavit creates a material issue of fact under a Wicker analysis.
With respect to basis 3), "trustworthiness," the circuit court did not consider the affidavit because it found Sammons was "not trustworthy." Deciding matters of credibility is generally not appropriate when deciding a summary-judgment motion. Here, there has been no showing that Sammons's affidavit was contradicted by prior sworn testimony. See Caplener v. Bluebonnet Milling Co. , 322 Ark. 751, 911 S.W.2d 586 (1995).
Regarding basis 4), "attorney-client privilege," without either party having raised an issue concerning attorney-client privilege, the circuit court interjected in its order granting summary judgment to Union Pacific that the affidavit "contains statements that, without a waiver from Alton Murphy, violate the attorney-client privilege." This privilege is for a proper party to raise; courts generally do not raise it for a party. Therefore, the circuit court's rejection of the affidavit based on the absence of a waiver of the attorney-client privilege from Alton Murphy was also misguided.
We direct the circuit court, in further proceedings consistent with this opinion, to reconsider the appropriateness of the affidavit and whether it does or does not create a genuine issue of material fact as it determines whether summary judgment should be granted under Wicker .
Reversed and remanded.
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LARRY D. VAUGHT, Judge
Jaylen Lamarvin Farmer appeals from the sentencing order entered by the Crittenden County Circuit Court convicting him of attempted capital murder, sixteen counts of second-degree unlawful discharge of a firearm from a vehicle, and fleeing. With enhancements for employing a firearm in the commission of each of these offenses, Farmer was sentenced to a total of ninety-six years' imprisonment in the Arkansas Department of Correction. Farmer raises four points on appeal: (1) the circuit court erred in denying his motion for mistrial; (2) the circuit court erred in denying his motion for new trial; (3) there was insufficient evidence to corroborate the accomplice testimony to support his convictions; and (4) the circuit court erred in allowing him to be convicted of more than one count of unlawful discharge of a firearm because it was conduct constituting one continuous event. We cannot reach the merits of his arguments due to abstract and addendum deficiencies.
Farmer's third point on appeal includes three subpoints, one of which is that the circuit court abused its discretion in denying his motion for continuance. Farmer filed a motion for continuance on March 12, 2018, two days before trial. The circuit court held a hearing on Farmer's motion that same day, after which the court orally denied the motion.
Arkansas Supreme Court Rule 4-2(a)(5) states that "[t]he appellant shall create an abstract of the material parts of all the transcripts (stenographically reported material) in the record. Information in a transcript is material if the information is essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal." Id. Here, the abstract does not include either Farmer's arguments or the ruling from the circuit court's hearing on Farmer's motion for continuance. This information is essential for the appellate court to decide Farmer's argument on appeal that the circuit court abused its discretion in denying the motion.
This is not Farmer's only abstracting deficiency. Arkansas Supreme Court Rule 4-2(a)(5)(B) also provides that "the abstract shall be an impartial condensation, without comment or emphasis, of the transcript (stenographically reported material)" and that "[n]o more than one page of a transcript shall be abstracted without giving a record page reference." Throughout the abstract, there are gaps-without explanation-in the hearing arguments and the trial testimony. For instance, the abstract of the February 26, 2018 pretrial hearing skips from R. 224 to R. 231-232. The abstract of the March 9, 2018 motion-to-suppress hearing skips from R. 262 to R. 271. The abstract contains a gap in trial testimony from R. 677 to R. 685; R. 697 to R. 702; R. 716 to R. 719; R. 732 to R. 737; R. 1055 to R. 1067; and R. 1068 to R. 1075. This is just a sampling; not an exhaustive list.
Further, in Farmer's abstract, there is a paragraph that is described as "the Defendant's phone call from the Detention facility," and the record-page cites within this paragraph are to R. 1067-1068. However, this phone call begins at R. 1057 and ends at R. 1069. Moreover, there is no context to this paragraph in the abstract. It is not clear in the paragraph whom Farmer called, whom he was talking to, or about whom he is talking. This evidence is relevant to Farmer's third point on appeal challenging the accomplice-corroboration testimony.
There is also an addendum deficiency in this case. Arkansas Supreme Court Rule 4-2(a)(8) requires the addendum to include all nontranscript items on appeal that are essential for the appellate court to confirm its jurisdiction, to understand the case, and to decide the issues on appeal. This includes exhibits such as DVDs. Ark. Sup. Ct. R. 4-2(a)(8)(A)(i). The State introduced into evidence and published to the jury a West Memphis police officer's dash-camera video. This video was relied on by law enforcement when it concluded that Farmer was the individual who was shooting a weapon at a police officer from the backseat of a vehicle and is relevant on the issue of accomplice-corroboration testimony.
If the appellate court determines that deficiencies or omissions in the abstract or addendum need to be corrected, but complete rebriefing is not needed, then the court will order the appellant to file a supplemental abstract or addendum within seven calendar days to provide the additional materials from the record to the members of the appellate court. Ark. Sup. Ct. R. 4-2(b)(4). Accordingly, we order Farmer to submit a supplemental abstract and addendum correcting the above-referenced deficiencies within seven days from the date of this opinion. Id. ; see also Powell v. State , 2013 Ark. App. 149, at 3, 2013 WL 749772. We encourage Farmer's counsel to review Rule 4-2 to ensure that the supplemental abstract and addendum comply with the rule and that no additional deficiencies are present.
Supplemental abstract and addendum ordered.
Gladwin and Glover, JJ., agree. | [
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BART F. VIRDEN, Judge
A Benton County jury convicted appellant John Britt of raping his teenage daughter, and he was sentenced to forty years in the Arkansas Department of Correction. On appeal, Britt argues that the trial court erred in admitting expert testimony on Y-STR DNA testing because it does not comport with the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), and that the trial court's admission of such evidence violated Arkansas Rule of Evidence 702. We affirm.
I. Procedural History
On January 30, 2017, Britt was charged with one count of rape, a Class Y felony. A rape kit was performed, and DNA material from the victim's body and clothing was submitted for testing by the Arkansas State Crime Laboratory. When the lab did not detect enough male DNA on the samples taken from the victim to perform autosomal DNA testing-the more common method that produces a profile that is unique to an individual-the lab performed Y-STR testing, which amplifies the male Y chromosome and excludes those men who do not share the same paternal lineage. While Y-STR testing cannot identify the source of DNA material, it can exclude those other than the individual donor or that individual's father, grandfather, son, etc.
Autosomal DNA testing was performed on a known sample from Britt to create a profile, K02, which was then compared to the samples from the victim that had been tested through Y-STR. Only a partial profile was obtained from the sample of material taken from the victim's vagina, Q01, but it was compared to, and was consistent with, Britt's profile; the frequency of occurrence in the statistical population was 1 in 207; and the probability of exclusion was 99.52 percent. A complete profile was obtained from the sample of material taken from the victim's pants, Q07. It was compared to, and was also consistent with, Britt's profile; the frequency of occurrence in the statistical population was 1 in 1,157; and the probability of exclusion was 99.91 percent.
Before trial, Britt filed a motion requesting a Daubert hearing to challenge the admission of expert testimony regarding Y-STR testing. The State did not file a written response to Britt's motion. The trial court granted Britt's motion and held a hearing on August 18, 2017. Britt presented the testimony of Mary Robinette, a retired chemist who had worked for seventeen years at the Arkansas State Crime Laboratory. Julie Butler, the State's witness, is the DNA analyst who conducted the Y-STR testing of the samples from the victim. Although Butler was present at the Daubert hearing, the State did not call her to testify but did cross-examine Robinette.
Robinette testified that Y-STR testing plays "a great role" in forensics and that it is especially helpful with missing persons and with male-female "mixture" cases. She said that, although Y-STR evidence cannot identify a person, it can place a person in "a pool of possibilities." Robinette stated that she had testified regarding Y-STR testing probably fifty times. She expressed concern in this case about potential cross-contamination because the process had been "rushed," confusion as to why some numbers did not match up, and uncertainty whether the Arkansas State Crime Laboratory still uses the "national database." On cross-examination by the State, Robinette described Y-STR testing as valid, legitimate science that she has used "numerous times." She said that it is reliable, repeatable, quantifiable, and widely used in the scientific community, especially forensics. She said that she has never expressed any concerns that the national database was insufficient such that it would call into question the validity of results. As for cross-contamination, she conceded that she did not know whether it had occurred in this case.
During the hearing, the trial court noted that the defense's argument appeared to pertain more to the weight of the evidence, and not its admissibility under Daubert and Rule 702. The trial court also remarked that it was clear that Y-STR testing is not "voodoo science." In its order denying Britt's motion to exclude expert testimony on Y-STR testing, the trial court found that Y-STR evidence is reliable, that it is widely accepted in court, that it is highly probative, and that expert testimony on the subject could be helpful to a jury.
At trial, Butler testified that she is a forensic DNA analyst at the Arkansas State Crime Laboratory with twenty years' experience. She said that she stays up to date with DNA technology and techniques; for example, she attends regularly scheduled training, reviews literature, and undergoes semiannual proficiency testing. As for standards, she said that there are "quite a number of steps taken" to avoid cross-contamination. She also testified that there are quality-assurance rules in place. Butler said that Y-STR testing is "extremely useful" for excluding people but that it does not have the "same statistical power" as with autosomal DNA testing. She further confirmed that the crime lab indeed uses the national database and testified that the statistical numbers are "not just generated out of thin air." She said that an organization called Scientific Working Group on DNA Analysis Methods (SWGDAM) makes recommendations for the best practice in DNA testing and that the organization, comprised of approximately fifty scientists, recommended that the Arkansas State Crime Laboratory use the national database. Butler explained that there is not a database in which the DNA for everyone who has ever lived or is living has been compiled but that the statistical method is used by the scientific community. She said, "That is how all of this DNA science works whether we're talking about autosomal DNA or Y-STR DNA." She said that the database is used by forensic scientists all over the world and that it has been studied, analyzed, "picked apart," and tested and that it is the best methodology available for forensic scientists.
At the conclusion of all the evidence, the jury convicted Britt of rape, and he was sentenced to forty years' imprisonment. He brings this appeal challenging the admission of expert testimony on Y-STR testing.
II. Discussion
As a preliminary matter, the State asserts that no Daubert analysis was necessary here because there is no novel scientific evidence involved. See Graftenreed v. Seabaugh , 100 Ark. App. 364, 268 S.W.3d 905 (2007) (noting that the Daubert factors apply only to "novel" evidence, theory, or methodology). The State cites Moore v. State , 323 Ark. 529, 915 S.W.2d 284 (1996), which held that DNA-profiling evidence should no longer be viewed as novel scientific evidence requiring a preliminary inquiry beyond the showing that the expert properly performed a reliable methodology in creating the DNA profiles. See also Scott v. State , 372 Ark. 587, 279 S.W.3d 66 (2008) (citing Moore , supra ). Although the State may be correct in asserting that Y-STR testing is not novel evidence, the State appears to be conflating different types of DNA evidence. Our understanding of Moore is that it involved the more commonly known autosomal DNA testing, which is different from the newer Y-STR testing. Accordingly, we are not prepared at this time-and under the facts and circumstances of this particular case-to hold that Y-STR testing is not novel such that no Daubert analysis is necessary. We turn now to Britt's arguments on appeal.
First, Britt argues that the trial court erred in permitting expert testimony regarding Y-STR testing and its related probabilities in violation of Arkansas Rule of Evidence 702. Rule 702 provides that if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. If some reasonable basis exists whereby the trial court may determine that the witness has knowledge of the subject beyond that of ordinary knowledge, and his or her expert testimony will assist the trier of fact in understanding the evidence presented or in determining a fact in issue, the trial court must qualify the witness as an expert and admit his or her testimony. Fowler v. State , 2011 Ark. App. 70. Additionally, the expert testimony must be relevant and not misleading or confusing to the jury. Id. There is a decided tendency to permit the fact-finder to hear the testimony of persons having superior knowledge in the given field unless they are clearly lacking in training and experience. Id. We review a trial court's decision to qualify a witness as an expert in a particular field under an abuse-of-discretion standard. Id. Here, Butler testified extensively about her experience and training and her familiarity with the methodology of Y-STR testing. We cannot say that the trial court abused its discretion in admitting her expert testimony on the subject pursuant to Rule 702.
Next, Britt argues that the Y-STR evidence does not comport with the Daubert standards. Our supreme court has adopted the United States Supreme Court's interpretation in Daubert of Federal Rule of Evidence 702. See Coca-Cola Bottling Co. v. Gill , 352 Ark. 240, 100 S.W.3d 715 (2003) ; Farm Bureau Mut. Ins. Co. of Ark., Inc. v. Foote , 341 Ark. 105, 14 S.W.3d 512 (2000). Under Daubert , the trial court must make a preliminary assessment of whether the reasoning or methodology underlying expert testimony is valid and whether the reasoning and methodology used by the expert has been properly applied to the facts in the case. A key consideration is whether the scientific theory or techniques can be or have been tested. Dundee v. Horton , 2015 Ark. App. 690, 477 S.W.3d 558. Other considerations include whether it has been subjected to peer review and publication, what is the known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation. Id. Also, whether the scientific community has generally accepted the theory can have a bearing on the inquiry. Id. The abuse-of-discretion standard is applicable to an appeal from a trial court's ruling on the scientific validity underpinning expert opinion. Richardson v. Union Pac. R.R. Co. , 2011 Ark. App. 562, 386 S.W.3d 77.
Specifically, Britt maintains that the State had the burden of establishing the admissibility of the Y-STR evidence but that the State showed only that such testing is generally accepted in the scientific community. Britt further asserts that the State did not offer evidence of the other Daubert factors as was done in Northern v. State , 2015 Ark. App. 426, 467 S.W.3d 755.
The appellant in Northern argued that the trial court should have excluded a firearm-and-toolmark examiner's expert testimony that bullets found in the victim's head had been fired from the appellant's gun. At the pretrial hearing, the appellant had challenged the State's expert by referencing each of the Daubert factors. The expert used a PowerPoint presentation explaining how the science satisfied Daubert . The appellant then introduced into evidence the PowerPoint presentation in paper form but later argued on appeal that the State had failed to introduce any "material evidence" of the Daubert factors, i.e., the actual tests, studies, manuals, peer-review publications, and standards. This court rejected the appellant's assertion that the testimony violated Rule 702 and Daubert , and we refused to consider his argument that the State failed to produce any material evidence on each of the Daubert factors because the argument had not been raised below.
Here, Britt did not argue the Daubert factors below. Although he cited Daubert in his motion requesting a hearing, he did not otherwise reference the factors in his motion or at the hearing. His motion and arguments at the pretrial hearing raised concerns involving the weight of the evidence, as pointed out by the trial court, and not the State's failure to produce evidence on each of the Daubert factors to support the validity of the science behind Y-STR testing. To the extent Britt's argument is preserved for review, we cannot say that the trial court abused its discretion in determining that Y-STR testing is a valid science that could be properly applied to the facts in this case.
In Regions Bank ex rel. Estate of Harris v. Hagaman , 79 Ark. App. 88, 84 S.W.3d 66 (2002), the appellants had sought to exclude an obstetrician's testimony that a doctor did not violate the standard of care for failing to instruct a nurse to apply suprapubic pressure to deliver a baby. The appellants argued on appeal that the trial court had erred in refusing to grant their motion in limine because Dr. Sandmire's testimony was not shown to be sufficiently reliable under Daubert . The crux of their argument was that Dr. Sandmire's opinions were not specifically supported by articles found in the medical literature. Although this court was reluctant to characterize the testimony as involving novel scientific evidence, we discussed Daubert and pointed out that publication was not a sine qua non of admissibility and did not necessarily correlate with reliability. In affirming the trial court's decision, this court further stated the following:
Appellants' view seems to be that the trial judge's duty is to apply the criteria mentioned in Daubert in a rigid fashion, with a view toward excluding questionable testimony. This is not the teaching of Daubert or its progeny.
The Daubert court made it clear that the basic standard of relevance provided in Rule 402 is a liberal one; that the inquiry envisioned by Rule 702 is a flexible one; and that the focus must be solely on principles and methodology, not on the conclusions they generate.
Id. at 95-96, 84 S.W.3d at 70.
According to Daubert , "[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence." 509 U.S. at 596, 113 S.Ct. 2786. "These conventional devices, rather than wholesale exclusion under an uncompromising 'general acceptance' test, are the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702." Id. The trial court must have considerable leeway in deciding how to determine whether particular expert testimony is reliable. Kumho Tire Co., Ltd. v. Carmichael , 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999). "Thus, whether Daubert 's specific factors are, or are not, reasonable measures of reliability in a particular case is a matter that the law grants the trial judge broad latitude to determine." Id. at 153, 119 S.Ct. 1167.
While neither Robinette's nor Butler's testimony covered all the Daubert factors, the trial court has discretion to determine which factors are reasonable measures of reliability. Even Britt's expert could not deny that Y-STR testing is valid and legitimate science, and the State's expert explained at trial about the national database, which is used with both Y-STR and autosomal DNA testing and said that it is the best methodology available. The trial court could have reasonably concluded that Y-STR testing "is not the sort of 'junk science' with which Daubert was concerned." Gen. Elec. Co. v. Joiner , 522 U.S. 136, 153, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (Stevens, J., concurring in part and dissenting in part); see Hagaman , 79 Ark. App. at 95, 84 S.W.3d at 70. Moreover, Britt was urged by the trial court to challenge the evidence at trial using the more traditional means, such as through cross-examination and the presentation of contrary evidence. We cannot say that the trial court abused its discretion in admitting evidence of Y-STR testing.
Affirmed.
Klappenbach and Whiteaker, JJ., agree.
"Y-STR" means short tandem repeat of the Y chromosome.
Because the trial court's decision at a Daubert pretrial hearing is only a "preliminary assessment," we do not feel constrained to consider only Robinette's testimony in deciding whether the trial court erred in admitting expert testimony on the subject of Y-STR testing. Cf. Conagra, Inc. v. Strother , 340 Ark. 672, 13 S.W.3d 150 (2000) (recognizing that a trial court's initial ruling on a motion in limine is a threshold ruling subject to reconsideration and change as the evidence is more fully developed at trial); Hignite v. State , 265 Ark. 866, 581 S.W.2d 552 (1979) (noting that appellate courts consider the entire record on review of whether a statement or confession was voluntary because later testimony at trial may show that there was no prejudicial error committed by the trial court in its original ruling at the Denno hearing because the later testimony at trial showed beyond question that the statement or confession was voluntary).
There is some indication in our case law that Y-STR testing has been around since approximately 2007, see, e.g. , Carter v. State , 2015 Ark. 57, 536 S.W.3d 123, but no such testimony was elicited during the course of this case. | [
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WAYMOND M. BROWN, Judge
Appellant Ashton Clark appeals the revocation of his probation by the Mississippi County Circuit Court for the underlying charge of residential burglary. He argues on appeal that his revocation should be reversed because (1) there was no corroboration of his codefendant's testimony and (2) the revocation should have been deferred until after the new murder charge was adjudicated. We affirm.
On December 18, 2015, Clark was charged with residential burglary and theft of property. He pled guilty to residential burglary and the theft charge was nol prossed. He was sentenced on April 4, 2016, to five years' probation and ordered to pay fines, fees, and costs. As a condition of his probation, he was ordered "not to commit a criminal offense punishable by imprisonment" and not to associate with persons "engaged in criminal activity." The State filed a petition to revoke on June 27, 2016, alleging that appellant had violated the terms and conditions of his probation by committing the offense of first-degree attempted murder. The State filed an amended petition on December 5, 2016, alleging that appellant had violated the terms and conditions of his probation by committing aggravated robbery and capital murder on October 12, 2016, and by associating with three other offenders while committing the crimes.
Appellant's revocation hearing took place on March 5, 2018. Tresia Seaton, chief deputy coroner for Mississippi County, testified that she was on call on October 12, 2016, and received a call at 7:28 p.m. concerning a deceased person on the front lawn of 102 Parkway in Osceola. She stated that she pronounced the victim, John David Williams, deceased at 7:50 p.m.
Detective Jerry Hamilton of the Osceola Police Department stated that he was called in to help on a large crime scene on October 12, 2016. He said that Williams was lying face down on a four-way lug wrench with a large sum of money in his pocket. He testified that he helped obtain video footage from the victim's home as well as other houses. He said that based on the videos, he was able to see that Williams was changing wheels on his car when the suspects made contact with him in his driveway. Williams ran, and the suspects chased him. He stated that a muzzle blast could be seen before the suspects ran back in the direction from which they came. He testified that he was able to identify a car he knew from prior traffic stops in the videos he obtained as belonging to Mildred and Paul English. He described the vehicle as a black Buick Rendezvous with chrome rims and a "Vote for David Burnett" sign. He stated that in a "10 to 15 minute timeframe, 6:55 to 7:10 p.m., [he saw] the vehicle come in to Magnolia Drive and turns around and comes back out the other way. The same vehicle again does the same thing. The last time it enters, around 7:08, it stays for several minutes. And that fits the timeframe of the murder." Detective Hamilton stated that there was also video footage prior to this time showing the same vehicle going up and down Parkway in front of Williams's house. He continued to describe the video footages and their importance to the murder case.
Harold Weeden testified that he came in contact with appellant on October 12, 2016, after shooting dice on Broadway. He stated that appellant and Zebarious Hawkins were sitting in a Hummer planning the robbery of Williams. Williams was chosen because of a Facebook picture showing him and another person with a lot of money. Weeden said that he and the others smoked marijuana. He testified that Shakur Bingham showed up when they were discussing the robbery and their need for guns. He stated that Shakur had a silver 9-millimeter, so he got in the Hummer with them. He said that they all left the Hummer and got into his vehicle.
Weeden stated that they rode around and went to "stakeout" Williams to see what he was doing. He stated that they went to Bingham's father's house on Parkway and that Williams was putting rims on his car at that time. Weeden testified that they went to Seminole Village and parked in the last circle between two apartment complexes to see how they "were going to approach the situation." They got one gun from Bingham's sister, Rashida. He stated that they then went to Dratashia Wilson's, appellant's girlfriend's, house to get the camouflage suit Hawkins wore along with a Scream mask. He stated that they subsequently went to his house for a change of clothes. He said that by this time, the plan had changed to where he was going to be the one to rob Williams and appellant would be the getaway driver since appellant was the only one with a driver's license. He testified that Bingham's job was to supply the guns. He stated the appellant agreed to be the driver, stating, "Okay, I've just gotta drive, that's it." He testified that they went back to Seminole Village and parked. He stated that he and Hawkins got out of the car and went through the back over a ditch. Weeden said that he had the "two-shooter" and Hawkins had the 9-millimeter. He said they saw Williams changing his tire and that Williams stood up, said "don't shoot me," and took off running. He stated that Hawkins came out of the bushes and started firing his weapon at Williams. He testified that he fled when Hawkins started shooting because that was never part of the plan. He said that he knew Williams because his sister used to date Williams's brother. He testified that when he returned to his vehicle, appellant was in the driver's seat, Bingham was on the passenger side, and that he and Hawkins got in the back. He stated that everyone asked Hawkins why he shot his gun. He said that Bingham's father called and said that Williams was dead over on Parkway. He stated that they drove to his house on East Alfalfa and subsequently split up. He said that he and Hawkins got rid of their clothes but that appellant and Bingham did not change clothes. He testified that they did not get anything from the robbery. Weeden stated that he went back to Jonesboro and called the police to turn himself in. He admitted that he was wrong and would have to serve time for his role in the crime.
On cross-examination, Weeden stated that he had an agreement with the State for fifteen years' imprisonment with five years suspended on the charge of conspiracy to commit first-degree murder.
Raymond Trammel, former detective of the Osceola Police Department, testified that he helped investigate Williams's murder and subsequently obtained arrest warrants for appellant, Hawkins, Bingham, and Weeden. He stated that Weeden turned himself in and cooperated without any offer on the table.
Appellant made a motion for directed verdict after the State rested, contending that there had been no corroborating evidence to indicate that appellant had any involvement in Williams's death other than Weeden's testimony, who was a codefendant. The State responded that corroboration of a codefendant's testimony is not necessary in a revocation proceeding. The court denied the motion, finding that the State had made a prima facie case. The defense rested without putting on evidence and renewed its directed-verdict motion. It argued that the cases holding that corroboration is not necessary in revocations "have either been overruled or are no longer good law, or they should be overruled." The court denied the motion and subsequently found that appellant had violated the terms and conditions of his probation by being an accomplice to capital murder and aggravated robbery. Appellant was sentenced to twenty years' imprisonment. The sentencing order was filed March 5, 2018. Appellant filed a timely notice of appeal on April 4, 2018. This appeal followed.
Pursuant to Arkansas Code Annotated section 16-93-308(d), a circuit court may revoke a defendant's probation at any time prior to the expiration of the period of probation if a preponderance of the evidence establishes the defendant inexcusably failed to comply with a condition of the probation. The State's burden of proof in a revocation proceeding is less than is required to convict in a criminal trial, and evidence insufficient for a conviction at a criminal trial may be sufficient for revocation. When the sufficiency of the evidence is challenged on appeal from an order of revocation, the circuit court's decision will not be reversed unless it is clearly against a preponderance of the evidence. The appellate court defers to the circuit court's superior position in evaluating the credibility and weight to be given testimony.
For his first point, appellant argues that his revocation should be reversed because there was no corroboration of his codefendant's testimony. Our courts have held that the uncorroborated testimony of an accomplice is a sufficient basis for a revocation of probation or a suspended sentence. To the extent that appellant argues that Ellerson should be reversed or overruled, we are without authority to overrule a decision of our supreme court. Accordingly, we find no error.
Next, appellant argues that his revocation should be reversed because the revocation should have been deferred until after the new murder charge was adjudicated. He contends that "[i]f [he] was convicted on those charges, revocation would automatically follow. If, on the other hand, [he] was acquitted on those charges, then the revocation should also be dismissed. In either case, [he] would have been afforded his full panoply of constitutional rights on the new charges." Counsel admits that a similar argument was rejected by this court in 2017. We hold that this argument is not preserved for our review and is being raised for the first time on appeal.
Even if the issue had been preserved, we would affirm. According to Arkansas Code Annotated section 16-93-308(d), a circuit court may revoke a defendant's probation at any time prior to the expiration of that probation. The trial court revoked appellant's probation long before his probation was set to expire. Additionally, the State's burden of proof in a revocation proceeding is less than is required to convict in a criminal trial, and evidence insufficient for a conviction at a criminal trial may be sufficient for revocation. Thus, even if appellant was acquitted in the criminal trial, his probation could still be revoked. Therefore, appellant's argument is without merit.
Affirmed.
Gladwin and Murphy, JJ., agree.
(Supp. 2017).
E.g. , Vangilder v. State , 2018 Ark. App. 385, 555 S.W.3d 413.
Id.
Id.
Id.
E.g. , Ellerson v. State , 261 Ark. 525, 549 S.W.2d 495 (1977) ; Tipton v. State , 47 Ark. App. 187, 887 S.W.2d 540 (1994) ; Collins v. State , 2018 Ark. App. 563, 566 S.W.3d 139.
Christian v. State , 2018 Ark. App. 594, 566 S.W.3d 527.
See Geeslin v. State , 2017 Ark. App. 571, 533 S.W.3d 132. | [
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BART F. VIRDEN, Judge
Appellant Tamica Hopkins appeals from the decision of the Arkansas Board of Review (Board), which affirmed and adopted the opinion of the Appeal Tribunal (Tribunal) denying her unemployment benefits on the basis that she was discharged from last work for misconduct connected with the work. Appellant alleges the Board and the Tribunal erred in finding that her firing was for misconduct and therefore finding her disqualified from receiving benefits. We reverse and remand.
Hopkins was employed by the Wynne School District as a teacher's aide. On June 19, 2018, the school board voted to discharge Hopkins due to her attendance. She was denied unemployment by the Department of Workforce Services (Department) and appealed the denial to the Tribunal, which held a telephone hearing on July 20, 2018.
Robbie Roach, principal of the junior high school, testified that the school district has an attendance policy, that the school district provided the policy to Hopkins, and that the policy indicates that an employee must "follow the protocol of being absent" and must not be absent over the permitted number of days. Roach further testified that Hopkins had not filed for leave pursuant to the Family Medical Leave Act, that Hopkins had accumulated eighteen and a half absences for the school year as of January 9, 2018, that she had received reprimands regarding her attendance, and that after the reprimands, she was absent an additional thirty-one days. Hopkins also testified, asserting that her absences were all due to personal illness and, therefore, were beyond her control and not willful.
The Tribunal affirmed the Department's denial of unemployment benefits under Arkansas Code Annotated section 11-10-514(a)(2) (Repl. 2015), finding that Hopkins was discharged for violating the employer's attendance policy. Hopkins timely appealed, and the Board affirmed and adopted the Tribunal's decision. Hopkins now appeals the Board's decision.
We review the Board's findings in the light most favorable to the prevailing party and affirm the Board's decision if it is supported by substantial evidence. Wilson v. Dir. , 2017 Ark. App. 171, 517 S.W.3d 427. Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion. Id. Even when there is evidence upon which the Board might have reached a different decision, the scope of our review is limited to a determination of whether the Board reasonably could have reached the decision it did based on the evidence before it. Id. Our function on appeal is not merely to "rubber stamp" decisions arising from the Board. Id.
Arkansas Code Annotated section 11-10-514(a) (Supp. 2017) provides in part:
(a)(1) If so found by the Director of the Department of Workforce Services, an individual shall be disqualified for benefits if he or she is discharged from his or her last work for misconduct in connection with the work.
(2) In cases of discharge for absenteeism, the individual shall be disqualified for misconduct in connection with the work if the discharge was pursuant to the terms of a bona fide written attendance policy, regardless of whether the policy is a fault or no-fault policy.
(3)(A) Misconduct in connection with the work includes the violation of any behavioral policies of the employer as distinguished from deficiencies in meeting production standards or accomplishing job duties; and
(B) Without limitation:
(i) Disregard of an established bona fide written rule known to the employee; or
(ii) A willful disregard of the employer's interest.
Misconduct includes the violation of any behavioral policies of the employer, disregard of the employer's rules, disregard of the standards of behavior that the employer has a right to expect from its employees, and disregard of the employee's duties and obligations to his or her employer. McAteer v. Dir. , 2016 Ark. App. 52, 481 S.W.3d 776. It is the employer's burden to establish misconduct by a preponderance of the evidence. Id. Whether an employee's behavior is misconduct that justifies the denial of unemployment benefits is a question of fact for the Board to decide. Id. There is an element of intent associated with a determination of misconduct. Id.
Here, the school district's policy for sick leave provides in pertinent part:
Each Classified employee will be allowed an accumulation rate of one (1) day of sick leave per month, or major portion thereof that the employee is contracted, at full pay.
....
When an employee finds he/she is to be absent from work, he/she shall notify their immediate supervisor as soon as possible. Failure of notification will result in loss of the employee's full pay for that day absent, even though the absence would normally fall under the provisions covered by this policy.
Absences for reasons not covered under the sick leave policy will be deducted at a rate of the employee's full pay for each day of absence.
The Board found that Hopkins was discharged for violating the employer's attendance policy. Section 11-10-514(a)(2) makes clear that in cases of discharge for absenteeism, an employee shall be disqualified for misconduct if the discharge was "pursuant to the terms of a bona fide written attendance policy." Here, the school had a written policy on absenteeism. However, the school's attendance policy did not provide for discharge for excessive absenteeism and instead provided for loss of pay for each day the employee is absent under the provision.
When the employer has no written policy or fails to follow its written policy, then the facts must be evaluated to determine whether the employee's behavior was a willful disregard of the employer's interest. Higgins v. Dir. , 2016 Ark. App. 449, 503 S.W.3d 833 ; Hernandez v. Dir. , 2015 Ark. App. 290, 461 S.W.3d 708. In Hernandez , the Board noted that, while the employer had a bona fide written attendance policy, the employer did not follow its policy as to Hernandez. As such, the employer was not entitled to rely on the no-fault provision of Ark. Code. Ann. § 11-10-514(a)(2). We ultimately affirmed the Board's denial of unemployment benefits in that case, but only because we found substantial evidence to support the Board's finding that Hernandez's continued absences, often without notice or an explanation, constituted a willful disregard of the duties and obligations owed to her employer and, therefore, amounted to misconduct under the traditional definition of the term. Id. at 5-6, 461 S.W.3d at 711-12.
No such finding was made in this case, however. Because there was neither a showing that Hopkins's discharge was pursuant to a bona fide written attendance policy under section 11-10-514(a)(2) nor a finding that her conduct was willful under section 11-10-514(a)(3), the Board's decision cannot stand. Therefore, we reverse and remand for the Board to make a finding as to whether Hopkins's behavior was a willful disregard of the employer's interest.
Reversed and remanded.
Klappenbach and Whiteaker, JJ., agree. | [
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KAREN R. BAKER, Associate Justice
Appellant Kenneth Hinton appeals the denial of his petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. Hinton was convicted of one count of first-degree battery and one count of second-degree battery and sentenced to thirty years' imprisonment and fifteen years' imprisonment respectively. Hinton's convictions and sentences were affirmed in Hinton v. State , 2017 Ark. 107, 515 S.W.3d 121. Following this court's decision, Hinton timely filed a petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. After a hearing, the circuit court entered its order denying Hinton's petition. We affirm.
Hinton's convictions stem from a disturbance at the Varner Unit of the Arkansas Department of Correction ("ADC") on October 28, 2012, in which Hinton and other inmates were involved. Hinton was charged in the disturbance for injuring Warden Joe Page and shift lieutenant Stephen Simmons. Initially, Hinton was named as a codefendant with Karl Pearce, Demetrius Woods, Desmond Holliman, Charles Jester, and Antonio Smith. On December 15, 2014, a jury trial was held and resulted in a mistrial on December 16. On April 25, 2016, the case proceeded to trial for a second time.
During Hinton's trial, Lieutenant Simmons testified that on the day of the incident, he had been working at the Varner Unit for a little over two years and was familiar with Hinton. Lieutenant Simmons testified that at the time of the incident there was tension in the chow hall because the inmates realized that an illegal phone had been confiscated from one of the barracks. A riot broke out with several inmates assaulting the staff. Lieutenant Simmons testified that Hinton struck him in the back of his head. Lieutenant Simmons testified that he was certain Hinton was the inmate who had struck him because "that's a face I will never, ever forget." Lieutenant Simmons testified that after Hinton struck him, Hinton immediately ran and struck Warden Page. During his testimony, Lieutenant Simmons reviewed videos and still photographs of the incident and identified Hinton as the inmate who had struck him and Warden Page. With regard to Warden Page's condition after he was struck by Hinton, Lieutenant Simmons testified that Warden Page was unresponsive. Lieutenant Simmons testified that as a result of the incident, he prepared an incident report in which he stated that Hinton ran out of the main chow hall and hit him with a closed fist on the left side of his face. On cross-examination, Lieutenant Simmons testified that he did not document Hinton's striking Warden Page in the incident report.
Sergeant Kenneth Ridgell, a field rider with the ADC, testified that he was familiar with Hinton because Hinton previously worked on his utility squad. Sergeant Ridgell testified that on the day of the incident, he witnessed Hinton blindside Warden Page with a closed fist, knocking him unconscious. Sergeant Ridgell testified that as a result of the incident, he prepared an incident report. In Ridgell's incident report, he did not list Hinton as one of the inmates involved in the riot. Sergeant Ridgell testified that while he did not identify Hinton as the inmate who had knocked Warden Page to the ground, this information should have been in his incident report.
Warden Page testified that because of his traumatic brain injury, he cannot recall any of the events from the day of the incident.
Hinton was convicted and sentenced as set forth above. Following this court's affirmance of his convictions and sentences, Hinton timely filed his petition for postconviction relief pursuant to Rule 37 of the Arkansas Rules of Criminal Procedure. In his petition, Hinton argued that his trial counsel was ineffective in failing to investigate and call witnesses who would have testified that Hinton did not hit Warden Page or Lieutenant Simmons. On June 12, 2018, a hearing was held on Hinton's Rule 37 petition. During the hearing, Hinton testified that he informed his trial attorney, Jason Files, that he did not participate in the assault on Warden Page and the other officers. Hinton testified that he discussed with Mr. Files the following witnesses that could be called to testify on his behalf: Antonio Smith, Desmond Holliman, Carlos McFerrin, Demetrius Woods, and Eric Ticey. Hinton testified that he wrote Mr. Files "a letter, an affidavit, letting him know that the way the first trial went, we was on the wrong page because he didn't call none of the witnesses that I asked him to call. So I basically wrote it out in affidavit form to call witness on my behalf and to do a better investigation job." With regard to the affidavit he sent to Mr. Files, Hinton testified that he informed Mr. Files that the witnesses would be able to testify that he was in Barracks 9 when the incident took place, which is two barracks away from the chow hall. Hinton testified the Mr. Files could have easily interviewed the potential witnesses because they were inmates in the ADC.
The five inmate-alibi witnesses, Smith, Holliman, McFerrin, Woods, and Ticey testified that they were either charged criminally or received disciplinary actions in relation to the battery of Warden Page and Lieutenant Simmons. The witnesses testified that Hinton was not present when the incident occurred. Additionally, each witness testified that he had not been contacted by Hinton's trial counsel about what he saw or whether Hinton was present during the incident. However, each witness testified that if he had been contacted, he would have been willing to testify on Hinton's behalf at his trial.
Jason Files testified that based on his case file, Hinton requested that he call only three witnesses-Charles Jester, Desmond Holliman, and Karl Pearce. Mr. Files testified that he contacted the attorneys of all three witnesses before trial. Mr. Files was told by all three attorneys that their clients would be willing to testify on behalf of Hinton but that their clients would be committing perjury if they testified that Hinton was not present during the riot. Additionally, Mr. Files testified that he elected not to the call the inmate witnesses because their serious criminal histories would become an issue. Despite Hinton's decision to not testify at his trial, Mr. Files was concerned it would become apparent to the jury that "this was a max unit and anybody in there was there for a serious crime." Mr. Files testified that his defense strategy was to present the riot as a very quick and traumatic incident, which would then allow him to challenge the accuracy of the prison guards' recollection of the events. Mr. Files further explained that "if we then call in inmates to say here's what really happened, we create a dichotomy of these guys know exactly what happened and they are right and they saw everything correctly versus ... if they could see it all correctly ... that means the guards probably saw it all correctly too." Mr. Files testified that the use of the inmates' testimony would have forced the jury to make a credibility determination between convicted inmates and law enforcement officers, which Mr. Files thought would result in an unfavorable outcome for Hinton. Mr. Files testified that by the second trial, the former codefendant witnesses had already pleaded guilty. In Mr. Files's opinion, their guilty pleas would have affirmed the prison guard's testimony.
On August 9, 2018, the circuit court entered its written order denying Hinton's petition. The circuit court found in pertinent part:
All of petitioner's witnesses admitted that since October 2012, until the hearing, they had not told officials that Hinton was not present during the riot. The testimony lacked the factual substantiation necessary to overcome the presumption that trial counsel's investigation fell below the wide range of reasonable professional assistance. The decision to call a witness is a matter of trial strategy. Mr. Files testified that in his professional opinion, presenting to a jury an inmate's testimony that completely contradicts the testimony of the ADC officers, would not benefit his client. Mr. Hinton was identified as one of the inmates who struck Warden Page and Officer Simmons. The jury viewed the video security recording of the incident. The jury was directed to observe Hinton in the recording as he participated in the riot. Mr. Files' trial strategy may have been instrumental in the jury's decision to recommend the minimum 30-year sentence for the petitioner's conviction on battery in the first degree. The punishment options ranged from a minimum of 30 years but not more than 60 years.
....
Petitioner has not met the first prong of the Strickland standard requiring a showing that Mr. Files made errors to serious that he was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment. Without proof to support the first prong, the second prong need not be addressed.
Hinton now brings this appeal and presents one issue for review: the circuit court erred in denying his Rule 37 petition because Hinton received unconstitutional ineffective assistance of counsel when his counsel failed to investigate and call the inmate-alibi witnesses at his trial.
"On appeal from a trial court's ruling on a petitioner's request for Rule 37 relief, this court will not reverse the trial court's decision granting or denying postconviction relief unless it is clearly erroneous.
Kemp v. State , 347 Ark. 52, 55, 60 S.W.3d 404, 406 (2001). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id. " Prater v. State , 2012 Ark. 164, at 8, 402 S.W.3d 68, 74.
"The benchmark for judging a claim of ineffective assistance of counsel must be 'whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.' Strickland [v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]." Henington v. State , 2012 Ark. 181, at 3-4, 403 S.W.3d 55, 58. Pursuant to Strickland , we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State , 369 Ark. 104, 251 S.W.3d 290 (2007). A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel's performance fell below an objective standard of reasonableness. Springs v. State , 2012 Ark. 87, 387 S.W.3d 143. A court must indulge in a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance. Id.
Second, the petitioner must show that counsel's deficient performance so prejudiced petitioner's defense that he was deprived of a fair trial. Id. The petitioner must show there is a reasonable probability that, but for counsel's errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard v. State , 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. Additionally, conclusory statements that counsel was ineffective cannot be the basis for postconviction relief. Anderson v. State , 2011 Ark. 488, 385 S.W.3d 783.
With respect to an ineffective-assistance-of-counsel claim regarding the decision of trial counsel to call a witness, such matters are generally trial strategy and outside the purview of Rule 37.1. Banks v. State , 2013 Ark. 147, 2013 WL 1491272. When a petitioner alleges ineffective assistance of counsel for failure to call witnesses, it is incumbent on the petitioner to name the witness, provide a summary of the testimony, and establish that the testimony would have been admissible into evidence. Wertz v. State , 2014 Ark. 240, at 4, 434 S.W.3d 895, 900 (citing Moten v. State , 2013 Ark. 503, 2013 WL 6327549 (per curiam)). To demonstrate prejudice, the petitioner is required to establish that there was a reasonable probability that, had counsel performed further investigation and presented the witness, the outcome of the trial would have been different. Hickey v. State , 2013 Ark. 237, 428 S.W.3d 446. Trial counsel must use his or her best judgment to determine which witnesses will be beneficial to the client. Id. Nonetheless, such strategic decisions must still be supported by reasonable professional judgment. Id. Finally, "[w]hen assessing an attorney's decision not to call a particular witness, it must be taken into account that the decision is largely a matter of professional judgment which experienced advocates could endlessly debate, and the fact that there was a witness or witnesses that could have offered testimony beneficial to the defense is not in itself proof of counsel's ineffectiveness." Johnson v. State , 325 Ark. 44, 49, 924 S.W.2d 233, 236 (1996) (internal citations omitted). To review the circuit court's order and correctly determine this issue, we must look at all the evidence adduced at trial and at the Rule 37 hearing. Howard , 367 Ark. 18, 238 S.W.3d 24.
We now turn to the sole issue raised by Hinton. Hinton's allegation of ineffective assistance of counsel is that his trial counsel failed to investigate and call the inmate-alibi witnesses at his trial. Hinton argues that even if Mr. Files had been told that Holliman's, Jester's, and Pearce's testimony may have amounted to perjury, this did not mean that Mr. Files could abdicate his responsibility to investigate Smith, McFerrin, Woods, and Ticey. Thus, Hinton contends that the first prong of Strickland has been met through Mr. Files's failure to investigate the inmate-alibi witnesses who were residing in Barracks 9 when the incident occurred.
A review of the record demonstrates that Hinton has failed to meet his burden under the first Strickland prong because he has not demonstrated that his trial counsel's performance fell below an objective standard of reasonableness. Additionally, the record shows that trial counsel's decision to not interview or call the witnesses was based on reasonable professional judgment. Mr. Files's defense strategy--to present the riot as a very quick and traumatic incident that would then allow him to challenge the accuracy of the prison guards' recollection of the events--was clearly supported by reasonable professional judgment. Further, Mr. Files's decision to not call the inmate witnesses because their serious criminal histories would, despite Hinton's decision not to testify, make it appear to the jury that he likewise held a serious criminal history. Finally, Mr. Files testified that he did not want to force the jury to make a credibility determination between convicted inmates and law enforcement officers because he thought this would result in an unfavorable outcome for Hinton. Because the decision not to call the inmate witnesses falls within the realm of trial strategy, it is outside the purview of Rule 37.
In sum, because we conclude that the performance of Hinton's trial counsel was not deficient, we need not address the prejudice requirement, which is the second prong under Strickland . Williams v. State , 2011 Ark. 489, 385 S.W.3d 228. Accordingly, the circuit court's decision to deny Hinton's petition for Rule 37 relief was not clearly erroneous, and we affirm.
Affirmed.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
I dissent. It is not disputed that Mr. Hinton's trial counsel, Jason Files, interviewed none of the five alibi witnesses that Mr. Hinton directed him contact. None. Files's excuse for his making no effort to contact these five witnesses is that he spoke to the lawyers for three of them. Assuming for a moment that talking to a witness's trial counsel counted as "investigation," that still left two potential witnesses that Files did not even attempt to do anything with. Nonetheless, the majority concludes that doing nothing, not even attempting to contact these potential witnesses constituted "reasonable professional judgment."
So let us consider the effort that Files actually did-allegedly-expend in "investigating" Mr. Hinton's potential alibi witnesses. According to Files, he talked to the witnesses' trial counsel, Robbie Golden and Dale West, and they-allegedly-told him that they would provide Mr. Hinton with an alibi, but that they would be committing perjury. Assuming that these conversations even took place, were not these highly experienced criminal-defense lawyers divulging confidential attorney/client communication? So, in effect, the majority is sanctioning gross ethical violations as a reasonable substitute for actually contacting the potential witnesses. In my view, it is certainly not "professional," far from "reasonable," and, if true, appallingly bad judgment by all concerned.
Finally, I must reject the majority's conclusion that Files's approach to the trial constituted "reasonable professional judgment." The majority has obviously failed to consider that it was Mr. Hinton's trial, not his lawyer's. Rule 1.2 of the Arkansas Rules of Professional Conduct, which sets the minimum standard for attorneys, states in pertinent part, "[A] lawyer shall abide by a client's decisions concerning the objectives of representation, and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued." Yet, instead of presenting the alibi defense that Mr. Hinton wanted, Files called no witnesses and simply relied on perfunctory cross-examination of the State's witnesses to undermine their accusations. The folly of Files's approach is obvious; the majority fails to recount that the jury was shown a video of the so-called riot, so it could draw its own conclusions about how "quick and traumatic" the "incident" was. Accordingly, Files's excuse for his performance rings hollow.
I likewise cannot endorse the majority's conclusion that Files's decision not to call alibi witnesses was "reasonable" because it would have opened the door to the State exposing the fact that these witnesses were incarcerated for serious felonies. The majority has lost sight of the fact that the "incident" in question was a prison riot, not a cotillion. No sane juror would expect a prison inmate not to have a criminal record. I am mindful that the Strickland Court stated that "[j]udicial scrutiny of counsel's performance must be highly deferential," however it also specified that trial strategy must be "reasonable." Strickland v. Washington , 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In my view, when a trial attorney does virtually nothing to defend his client, that performance can never be "reasonable."
I dissent.
Hinton set forth additional grounds in his petition for postconviction relief. However, Hinton fails to address these arguments on appeal, and issues raised below but not argued on appeal are considered abandoned. Stewart v. State , 2014 Ark. 419, 443 S.W.3d 538 (per curiam).
Hinton had originally wanted Mr. Files to call Charles Jester, a previous codefendant. However, Hinton testified that he "scratched him" because "they shipped him out of state."
Mr. Files indicated that there was a fourth individual that Hinton wanted him to call as a witness. However, Mr. Files could not recall the individual's name because he had already been released from prison and could not be located. | [
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PHILLIP T. WHITEAKER, Judge
Appellant Karen Sossamon was charged with three counts of possession of controlled substances with intent to deliver, one count of possession of drug paraphernalia, and one count of obstructing governmental operations. Before trial, Sossamon filed a motion to suppress the evidence. The circuit court held a hearing on her suppression motion and denied it. A Sevier County jury subsequently convicted Sossamon on all five counts and sentenced her to a total of seventy-three years and one month in the Arkansas Department of Correction. On appeal, Sossamon does not challenge the sufficiency of the evidence supporting her convictions; rather, she argues that the circuit court erred in denying her motion to suppress. We find merit to her arguments, and we reverse and remand.
I. Background Facts
We begin by examining the facts underlying Sossamon's motion. Sossamon was pulled over for speeding by officer Justin Gentry at approximately 2:30 a.m. She was driving a vehicle that belonged to Selah Dyer, who was a passenger in the back seat. A third woman, Angela Kush, was the front-seat passenger. After initiating the stop, Gentry called for backup.
Gentry approached the driver's-side window and asked Sossamon for her name and driver's license. Sossamon provided a false name, "Tonya Adams," and a birth date and told Gentry that she did not have her driver's license. Gentry ran a search on the name "Tonya Adams" and the birth date Sossamon gave him, and they came back to a valid license; he was thus unaware that Sossamon had provided false information and believed he was dealing with Tonya Adams. Gentry then obtained identification from the other two passengers in the car. He ran Dyer's and Kush's information through the system and discovered that Dyer had a felony drug history on her criminal record. Gentry asked Sossamon, Dyer, and Kush what they were doing and where they were going. They responded that they were on their way to the casino. Gentry was suspicious of this answer because, in his experience, people were generally leaving the casino at 2:30 a.m., not going to the casino, and Kush was wearing pajama bottoms.
While Gentry was gathering information, Dyer told Gentry that she was the owner of the vehicle. Gentry asked Dyer if she had anything illegal in the vehicle, and she replied that she did not. He then asked Dyer if she would consent to a search of the vehicle, and she agreed. Gentry asked Sossamon and Kush to step out of the vehicle and advised them that Dyer had given consent to search. Sossamon immediately became agitated and yelled that she did not want Gentry searching her bags. Gentry told her that she was free to tell him which bags belonged to her, and he would remove them from the car for her. Sossamon pointed out two bags in the back seat, and Gentry allowed her to retrieve them.
After Sossamon got her bags out of the car, Gentry began his search of Dyer's car and its contents. He searched a purse in the back seat that contained a makeup bag. Inside the makeup bag, Gentry found what he believed was some type of pipe inside a "bunch of wadded up tissue paper." In addition to the pipe, he found a bag containing a substance he believed to be methamphetamine. Gentry asked all three women who owned the purse, and Dyer answered that it was hers. Gentry found nothing further in his search of Dyer's car or its contents.
Because of his discovery of the drugs inside Dyer's purse within her vehicle, Gentry called his sergeant and asked if he was allowed to search the bags that previously had been taken out of the car. The sergeant advised him that he had probable cause to search the other bags that had already been removed from the car. Gentry went to Sossamon and told her what he had found in the car, and he asked her if she had anything illegal in her bags that she had taken out of the car. Sossamon replied that she did not, and Gentry advised her that he was going to search them anyway on the basis of what he had found in the car. Gentry then proceeded to search Sossamon's bags and discovered marijuana, hydrocodone, methamphetamine, scales, baggies, and other paraphernalia. At the time of his search of Sossamon's bags, Gentry was still unaware that the name and information that she had previously provided were false.
Sossamon filed a motion to suppress the drugs and paraphernalia seized from her bags, arguing that Gentry lacked probable cause to conduct the warrantless search of her possessions. After a hearing, the court denied Sossamon's motion, stating from the bench that "as soon as the officer found contraband in that car, he had probable cause to proceed and search the other items that were within reach of any of the other occupants, and they did not have an unreasonable right to deny their search in violation of the Fourth Amendment." The matter subsequently proceeded to trial, and as noted above, Sossamon was convicted on all counts. She timely appealed.
II. Standard of Review
In reviewing a circuit court's denial of a motion to suppress evidence, we conduct a de novo review based on the totality of the circumstances, reviewing findings of historical facts for clear error and determining whether those facts give rise to reasonable suspicion or probable cause, giving due weight to inferences drawn by the circuit court and proper deference to the circuit court's findings. Jackson v. State , 2013 Ark. 201, at 5-6, 427 S.W.3d 607, 611-12 ; Menne v. State , 2012 Ark. 37, 386 S.W.3d 451. A finding is clearly erroneous, even if there is evidence to support it, when the appellate court, after review of the entire evidence, is left with the definite and firm conviction that a mistake has been made. Jackson , supra.
III. Discussion
On appeal, Sossamon argues that the warrantless search of her bags was unconstitutional, asserting that the owner's consent to search the vehicle did not include her bags, nor did the police have probable cause to search her bags. We therefore examine the law surrounding warrantless searches.
The United States Supreme Court has held that a warrantless search or seizure is per se unreasonable unless it falls under a recognized exception to the warrant requirement. Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). We have followed this precedent in our own opinions. Tiller v. State , 2014 Ark. App. 431, at 7, 439 S.W.3d 705, 710. Here, Officer Gentry's search of Sossamon's bags was without a warrant and was thus per se unreasonable unless it fell under a recognized exception to the warrant requirement. Our court has stated that the burden of proof is on the State to justify the search. Mays v. State , 76 Ark. App. 169, 61 S.W.3d 919 (2001). On appeal, we make an independent determination based on the totality of the circumstances to ascertain whether the State has met its burden of justifying the warrantless search. Henley v. State , 95 Ark. App. 108, 111, 234 S.W.3d 316, 319 (2006). With these standards in mind, we now consider whether this warrantless search falls under a recognized exception.
A. Consent
We recognize the consent of the subject of the search as an exception to the warrant requirement. See Lobania v. State , 60 Ark. App. 135, 137, 959 S.W.2d 72, 74 (1998) ("Consent is a justification for a warrantless search."); see also Ark. R. Crim. P. 11.1(a) ("An officer may conduct searches and make seizures without a search warrant or other color of authority if consent is given to the search."). The State must prove by clear and positive testimony that consent to search was freely and voluntarily given. Griffin v. State , 347 Ark. 788, 67 S.W.3d 582 (2002).
In this case, Dyer undisputedly gave her consent to search the vehicle that belonged to her. Sossamon, however, undisputedly refused to grant-and indeed withheld-her consent to the search of her personal belongings. Gentry clearly understood that Sossamon was withholding her consent to a search of her bags, and he allowed Sossamon to remove her bags from the vehicle because of her refusal to consent. The State therefore clearly failed to prove that Sossamon consented to a search of her possessions.
We must then consider whether Dyer's consent to the search of the vehicle somehow extended to Sossamon's belongings. This court has noted that "where there are no limits placed on the search [of a vehicle], the consent to search includes any containers found inside the vehicle." Flores v. State , 87 Ark. App. 327, 334, 194 S.W.3d 207, 212 (2004). This does not mean, however, that a suspect cannot place limits on consent to search. See Florida v. Jimeno , 500 U.S. 248, 252, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991) ("A suspect may of course delimit as he chooses the scope of the search to which he consents."). Our standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of "objective" reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect. Id. at 251, 111 S.Ct. 1801 ; see also Miller v. State , 342 Ark. 213, 220, 27 S.W.3d 427, 431 (2000). Applying this standard to the facts herein, we hold that Dyer's consent did not extend to a search of Sossamon's personal belongings.
Here, Dyer provided consent to search her car, but Sossamon withheld consent to search her personal belongings that had already been removed from the vehicle at the time of the initial search. Clearly, Sossamon had the right to withhold consent to a search of her belongings. A passenger in another's vehicle has standing to contest the search of his or her own personal belongings inside the vehicle. See Dixon v. State , 327 Ark. 105, 111, 937 S.W.2d 642, 645-46 (1997) (citing United States v. Infante-Ruiz , 13 F.3d 498 (1st Cir. 1994) (passenger had standing to challenge search of his own briefcase stored in the locked trunk of car); People v. Armendarez , 188 Mich.App. 61, 468 N.W.2d 893 (1991) (passenger who had no standing to challenge search of automobile did have standing to challenge search of his own personal effects in automobile)); see also United States v. Iraheta , 764 F.3d 455, 462 (5th Cir. 2014) ("[P]assengers have standing to challenge searches to their luggage.").
We acknowledge that the citations provided above relate to a passenger's standing to contest the search of personal belongings located within or inside the vehicle of another and that Sossamon's belongings were located outside the vehicle. Sossamon, however, very definitely placed a limit on the scope of the search. Any reasonable person would have understood her statements as limiting the scope of Gentry's search-and indeed expressly denying him the ability to search. Dyer's consent did not somehow abrogate Sossamon's right to refuse to consent. The Eighth Circuit has held that police may not rely on third-party consent if a person with a higher expectation of privacy is present and actively objects to the search. United States v. Ruiz , 935 F.2d 982, 984 (8th Cir. 1991). The State does not dispute that Sossamon had a higher expectation of privacy in her bags. As such, Dyer's consent to a search of the vehicle did not automatically extend to Sossamon's bags. Because there was no consent to search Sossamon's possessions, we then consider whether any other exception to the warrant requirement applies.
B. Automobile/Probable Cause
The United States Supreme Court established another exception to the warrant requirement-the "automobile exception"-in Carroll v. United States , 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925), recognizing that the mobile nature of automobiles justifies a search, based on probable cause, even when a warrant has not yet been obtained. Arkansas has adopted guidelines for warrantless searches of vehicles in Rule 14.1 of the Arkansas Rules of Criminal Procedure, which provides in relevant part that a police officer
who has reasonable cause to believe that a moving ... vehicle ... contains things subject to seizure may, without a search warrant, stop, detain, and search the vehicle and may seize things subject to seizure discovered in the course of the search where the vehicle is:
(i) on a public way.
Reasonable cause, as required by this rule, exists when officers have trustworthy information that rises to more than mere suspicion that the vehicle contains evidence subject to seizure and a person of reasonable caution would be justified in believing an offense has been committed or is being committed. Jackson , 2013 Ark. 201, at 9, 427 S.W.3d at 613.
The State concedes that Gentry's initial search that led to the discovery of drugs in Dyer's purse was not based on probable cause. Nonetheless, citing Wyoming v. Houghton , 526 U.S. 295, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999), the State urges us to conclude that once the consent-based search of the vehicle uncovered the drugs in Dyer's purse, Gentry developed probable cause to search Sossamon's personal belonging. We are not persuaded that Houghton is applicable.
In Houghton , a law-enforcement officer pulled a car over for speeding and driving with a faulty brake light. As he approached the vehicle, the officer saw a hypodermic syringe in the driver's pocket. The officer asked the driver to step out of the vehicle and asked him what the syringe was for, and the driver replied that he used it to take drugs. The officer then asked the two female passengers, one of whom was Sandra Houghton, to step out of the car. Houghton did so, leaving her purse in the back seat of the vehicle. Given the driver's admission to using the syringe for drugs, the officer searched the passenger compartment of the car for contraband. Houghton's purse was among the items searched, and the officer found drug paraphernalia and methamphetamine in it. Houghton , 526 U.S. at 298, 119 S.Ct. 1297.
The Wyoming trial court denied Houghton's motion to suppress the drugs found in her purse, and a jury convicted her on drug charges. The Wyoming Supreme Court reversed her conviction, holding that there had been no probable cause to search a passenger's personal effects and no reason to believe that contraband had been placed in her purse. The United States Supreme Court disagreed, however, relying on United States v. Ross , 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), which held that the permissible scope of a warrantless car search is defined by the object of the search and the places in which there is probable cause to believe that it may be found. Houghton , 526 U.S. at 302, 119 S.Ct. 1297. The Court declined to provide additional protection for a passenger's belongings, noting that "[a] passenger's personal belongings, just like the driver's belongings or containers attached to the car like a glove compartment, are 'in' the car, and the officer has probable cause to search for contraband in the car." Id. (emphasis in original). The Supreme Court therefore concluded that police officers with probable cause to search a car may inspect a passenger's belongings found in the car that are capable of concealing the object of the search. Id. at 307, 119 S.Ct. 1297.
We find Houghton to be distinguishable in several respects. First, Houghton involved a search based on probable cause that was developed at the moment the officer pulled the vehicle over. In the instant case, Gentry's search was based on Dyer's consent to search the vehicle, which, as addressed above, did not extend to a search of Sossamon's bags. Indeed, Gentry testified that he did not have probable cause to search Sossamon's bags when she removed them from the vehicle: "She took her bags out of the back seat. I did not take them out. They were in the back seat and she took them out. At that time, I didn't have probable cause to search her bags without her consent. After I found the drugs and paraphernalia in Ms. Dyer's bag, that is when I had probable cause to search Ms. Sossamon's bag. Before that, I did not have probable cause to search her bag."
Second, Houghton involved a search of personal belongings inside the vehicle. Here, Sossamon's bags were not inside the vehicle; they had been removed before the search of the vehicle even began. This second point of distinction is not just about location or distance. As seen in the quoted language above, the Houghton Court emphasized that an officer's probable cause extends to searches of containers in the car. In a concurring opinion, Justice Breyer clarified that "the rule applies only to automobile searches. Equally obviously, the rule applies only to containers found within automobiles. " Houghton , 526 U.S. at 308, 119 S.Ct. 1297 (Breyer, J., concurring) (emphasis added).
Arkansas has not specifically addressed the issue involved in this appeal. To that extent, it appears to be an issue of first impression, although our supreme court has held that if probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. State v. Crane , 2014 Ark. 443, 446 S.W.3d 182 (citing Ross , supra ).
Other jurisdictions, however, have distinguished Houghton , often citing Justice Breyer's concurring opinion. For example, in State v. Boyd , 275 Kan. 271, 64 P.3d 419 (2003), the driver of a vehicle stopped for a traffic violation consented to a search of the vehicle. Boyd, a passenger in the vehicle, was ordered out of the car and was also ordered to leave her purse in the car when she exited, although she had attempted to take the purse with her. The police asked for Boyd's consent to search her purse, but she refused to consent. Police searched the purse anyway and found drugs. The Kansas trial court denied Boyd's motion to suppress the drugs, and on appeal, Boyd argued that Houghton was not controlling. The Kansas Court of Appeals agreed with her, and the State appealed to the Kansas Supreme Court. Id. at 422.
The Kansas court framed the question as whether Boyd's attempt to take her purse with her when she got out of the vehicle, which happened before the officers developed probable cause to search the vehicle, sufficiently distinguished the case from Houghton . Id. at 423. The court determined that it did. The court concluded that Boyd's purse was her personal property and under her control, and the officer had no right to order her to leave her personal belongings in the car. Moreover, at the time the officer ordered her out of the vehicle, he did not have probable cause to search her or her purse. Therefore, the search of Boyd's purse-even though it was inside the vehicle-violated her Fourth Amendment right against unreasonable searches. Id. at 427.
Likewise, in State v. Funkhouser , 140 Md.App. 696, 782 A.2d 387 (2001), the Court of Special Appeals of Maryland held invalid the search of a "fanny pack" that the driver of the vehicle was wearing after he was ordered out of his vehicle. There, the defendant had been pulled over for an ostensible traffic violation and subsequently refused to consent to a search of his vehicle. Funkhouser , 782 A.2d at 394. The officers nonetheless searched the interior of the vehicle as well as the fanny pack. In upholding the lower court's suppression of the drugs that were subsequently found, the Maryland court noted that in Houghton , there was probable cause to search an automobile for contraband, and the purse that officers searched in that case was not attached to its owner's person. "It was searched just as the rest of the automobile was searched." Id. at 398. The court continued:
The holding of Wyoming v. Houghton is that a container (1) sitting on its own (2) in an automobile is just as vulnerable to a warrantless automobile search as any other part of the automobile in which the suspected evidence might be lurking. The first requirement, clearly not satisfied in the case now before us, is that the container, in fact, be inside the automobile when the automobile is searched.
Id. The court went on to place special emphasis on numerous instances both in the Houghton opinion and in other Supreme Court opinions in which the Supreme Court emphasized that it was considering the search of a passenger's personal belongings inside an automobile. The court concluded:
The "fanny pack" in this case was not inside the Jeep Wrangler during the ... search of the Wrangler. Had it been and had it not been attached to the body of Funkhouser, it would unquestionably have been vulnerable to a warrantless search under Wyoming v. Houghton and United States v. Ross . Neither of those criteria, however, was satisfied.
Id. at 398. Accordingly, the court held that the warrantless search of the fanny pack was unreasonable. Id. at 399.
Here, Officer Gentry conceded that he did not have probable cause to search the vehicle when he pulled it over; his search was based on Dyer's consent. He also conceded that at the time he pulled the vehicle over, he did not have probable cause to search Sossamon's personal belongings. Moreover, by the time Gentry discovered the drugs in Dyer's purse, Sossamon's bags were no longer inside the vehicle.
Gentry did not articulate any basis for searching Sossamon's bags other than his discovery of drugs inside Dyer's purse. The question then becomes whether the discovery of drugs in Dyer's purse gave rise to probable cause to search Sossamon's bags.
We cannot conclude that it did. In State v. Villines , 304 Ark. 128, 801 S.W.2d 29 (1990), the supreme court held that the mere presence of a marijuana cigarette and marijuana seeds in the passenger compartment of a vehicle did not supply the probable cause required for the search of a container found in the locked trunk of the car. There, the court noted that "the presence of cigarette butts or marijuana seeds, without more, is just as consistent, or perhaps more so, with having only that small amount for personal use as it is with having a cache of marijuana; there is simply no articulable fact to indicate a cache is located in the trunk." Villines , 304 Ark. at 132, 801 S.W.2d at 31.
Similarly, here, the mere fact that Dyer had drugs in her purse, without more, does not provide a basis for assuming that Sossamon had drugs in her bags. See Ybarra v. Illinois , 444 U.S. 85, 91, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979) ("[A] person's mere propinquity to others independently suspected of criminal activity does not, without more, give rise to probable cause to search that person. Where the standard is probable cause, a search or seizure of a person must be supported by probable cause particularized with respect to that person.") (internal citation omitted). Accordingly, we conclude the circuit court clearly erred in finding that Gentry had probable cause to search Sossamon's bags based on his finding of drugs in Dyer's purse.
C. Inevitable Discovery
Despite the illegality of the search, the State nonetheless contends that we can affirm the circuit court's decision pursuant to the doctrine of inevitable discovery. The inevitable-discovery rule provides that evidence otherwise subject to suppression can be admissible if the State proves by a preponderance of the evidence that the police would have inevitably discovered the evidence by lawful means. See Colbert v. State , 340 Ark. 657, 13 S.W.3d 162 (2000).
The State suggests that the drugs in Sossamon's bags would have been inevitably discovered "because it is undisputed she was driving without a license. She could have been arrested for that offense and, pursuant to a search incident to that arrest, the drugs in her bags would have been discovered." The State's argument is belied by Officer Gentry's own testimony. He explained that he had no idea that Sossamon was not Tonya Adams until he took her to the police station following her arrest for the drugs in her bags. He also conceded that lying about one's name to a police officer in an investigation "is a misdemeanor. Kind of like a speeding ticket. You just get a fine and a slap on the hand." Notably, however, he did not testify that he would have arrested her for giving false information about her identity.
To apply the inevitable-discovery rule, the State must prove that the police would have inevitably discovered the evidence by lawful means. Here, at best, the State presents argument of what "could have" happened and not what "would have" happened. The evidence offered by the State at both the suppression hearing and at the trial fell short of this standard. We therefore decline to affirm the circuit court's decision on this alternative basis.
IV. Conclusion
Officer Gentry's search of Sossamon's personal belongings, conducted after they were removed from the vehicle and without individualized probable cause, was unreasonable. The circuit court clearly erred in denying Sossamon's motion to suppress the drugs.
Reversed and remanded.
Virden and Gladwin, JJ., agree.
In reviewing the facts that led to the circuit court's ruling on Sossamon's motion to suppress, we consider the testimony from both the suppression hearing and Sossamon's subsequent trial. We have frequently noted that the suppression-hearing testimony is not the only evidence we consider when reviewing the denial of a motion to suppress. See Wells v. State , 2018 Ark. App. 391, 2018 WL 4212255 ; Cain v. State , 2010 Ark. App. 30, at 5, 373 S.W.3d 392, 395 ("We review the entire record ..., not just the record of the suppression hearing.").
Officer Gentry also observed that the car did not have a functioning license-plate light.
At the suppression hearing, Gentry testified that he did not remember whether he took the bags out of the car or if Sossamon did; at trial, he testified that he told Sossamon he would not look in the bags, and he then let her remove them from the car "just to avoid the issue."
Gentry did not discover the false information until after Sossamon had been arrested as a result of the search and taken to the police station.
Justice Breyer noted that the automobile exception "does not extend to the search of a person found in that automobile." He further commented that "[p]urses are special containers. They are repositories of especially personal items that people generally like to keep with them at all times. So I am tempted to say that a search of a purse involves an intrusion so similar to a search of one's person that the same rule should govern both." Id.
In its brief, the State takes the position that "[i]t should not be that a citizen can defeat a right to search simply by taking or attempting to remove personal property from an automobile." (Emphasis added.) The State is mistaken in its contention. A police officer's "right to [conduct a warrantless] search and the validity of the search are dependent upon the reasonableness of the cause the searching officer has for believing that the contents of the automobile offend against the law." Williams v. State , 26 Ark. App. 62, 65-66, 760 S.W.2d 71, 73 (1988) ; Rowland v. State , 262 Ark. 783, 561 S.W.2d 304 (1978). As discussed herein, Gentry had no reasonable cause to believe that the contents of Sossamon's bags might "offend against the law." | [
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KENNETH S. HIXSON, Judge
Appellant Benjamin Wilson Pratt appeals from a June 19, 2018 divorce decree filed by the Union County Circuit Court in favor of appellee Tamra Renee Pratt (now Corley). On appeal, Benjamin contends that the circuit court erred in its unequal division of the parties' marital property. We affirm.
I. Facts
The parties were married on April 27, 2013, and separated on July 4, 2017. No children were born of the marriage, but Tamra's son by a prior marriage resided with the parties. Tamra is a beneficiary of a family trust that produced significant income. Benjamin was employed at a chemical plant and received some Social Security disability benefits during the marriage due to diabetes and kidney complications. Tamra filed a complaint for divorce on July 7, 2017, on the grounds of personal indignities and requested the circuit court to make a distribution of the real and personal property acquired during the marriage. A trial was held on March 9, 2018.
Tamra testified that she has a 10 percent interest in the Corley Trust, which distributes oil and gas royalty dividends as part of her family's oil-production company. She receives the dividends quarterly, and the amount varies based on the price of oil by the barrel. Tamra testified that Benjamin was employed at Great Lakes Chemical plant during their marriage. According to their 2013 through 2016 tax returns, Benjamin cumulatively earned $ 198,528 in gross income, including his wages and Social Security disability benefits. Comparatively, Tamra cumulatively earned $ 802,182 in gross income.
Tamra further testified that she owned a premarital residence that the parties lived in before she sold it for $ 250,000. The parties purchased their marital residence on Pleasant Oak Drive in Smackover, Arkansas, for $ 250,000 in addition to the adjacent lot for $ 30,000 that was titled in both of their names. They made some improvements to the residence, including the construction of a shop building, a fence, and a swimming pool. It was undisputed that the costs of those improvements totaled $ 81,206.10. Tamra testified that the improvements were funded by her dividend income from the Corley Trust.
Tamra additionally testified that Benjamin's father owned a home on East 10th Street in Smackover, Arkansas. Benjamin's father had a reverse mortgage on the residence. During the marriage, Tamra used her dividend income to pay off the reverse mortgage on January 14, 2016, in the amount of $ 41,167.52, and the property was deeded back to Benjamin's father. Thereafter, on February 15, 2017, Benjamin's father conveyed the property to Benjamin by warranty deed in Benjamin's name only. Tamra further used a total of $ 11,950.91 of her dividend income to improve the East 10th Street residence.
Tamra testified that she paid Benjamin's premarital debts totaling $ 6,112.18 and that she paid a total of $ 3,883.31 for credit-card charges that Benjamin made after the parties' separation. The parties further had $ 52,758.26 and $ 170,475.34 in their joint checking and savings accounts, respectively. Tamra explained that Benjamin never contributed any money to the savings account, but his payroll checks were deposited into the checking account. Tamra stated that she purchased Benjamin's new Ford F150 truck the summer after they were married. Therefore, she requested that the circuit court make an unequal division of the real and personal property that she purchased from her dividend income. She also requested that her name be restored to her former surname of Corley.
Benjamin did not dispute any of the specific amounts mentioned by Tamra. Benjamin further admitted that he did not have the funds to make all the purchases without Tamra's savings of the dividend income. Benjamin testified that he generally contested the grounds for divorce. However, he testified that if a divorce was granted, he requested that he be awarded one-half of the marital property.
In its divorce decree filed on June 19, 2018, the circuit court specifically made the following findings:
4. The property issue is subdivided into four areas: real property, real property improvements, bank accounts, and personal property. Plaintiff is a beneficiary of a family trust which produced significant but variable annual income. Defendant was employed at a chemical plant and then drew social security disability benefits. The difference in their income is substantial and is a factor in the division of property. The factors in A.C.A. § 9-12-[317 (Repl. 2015) ] are applied to the facts and justify an unequal division of the property held by the entirety.
A. Real Property: This category consists of the marital home purchased July 1, 2015, for $ 250,000, an adjacent lot purchased at the same time for $ 30,000, and Defendant's father's house on East 10th Street where the parties paid off a mortgage of $ 41,000. The marital house and lot were purchased early in the marriage and title was listed in both names, creating a tenancy by the entireties. Although the purchase money came from the funds of Plaintiff [Tamra], her placement of Defendant[ Benjamin's] name on the title constitutes a gift to Defendant and creates equal ownership in properties valued at $ 280,000 and possessed by Plaintiff. Upon payment to Defendant, Plaintiff shall have title to and possession of said property.
The East 10th Street property has been owned by Defendant's father. After paying off the mortgage in early 2016, the parties put title in Defendant's name. Defendant occupies the property as his residence now.... Defendant shall have title and possession to said property.
The calculation of interest is therefore $ 250,000 + $ 30,000 = $ 280,000 - $ 41,000 = $ 239,000 ÷ 2 = $ 119,500 to each party as to the division of real property. Since the Plaintiff seeks title to the marital home, Plaintiff would owe Defendant $ 119,500 for his interest therein.
B. Improvements to Real Property: Improvements to the marital house and lot were made at a cost of $ 81,000 as set forth in Plaintiff's Exhibit 4. Improvements to the 10th Street property totaled $ 11,950. It cannot be determined that this expenditure caused a corresponding increase in the value of the property of the same amount. Therefore, the improvements are considered separately. During the four years of marriage, the parties maintained two checking accounts, into which their incomes were deposited. It is of significance that Plaintiff's contributions were approximately four times that of Defendant over the four years of marriage ($ 802,182 compared to $ 198,528). In addition, Plaintiff sold her premarital home on Line Drive in Smackover for about $ 250,000 after their marriage, and this sum was used for marital expenses. In light of the significant cash contributions of the Plaintiff, the Court will not assign any equitable interest to Defendant for these improvements to the marital home and lot. Lastly, improvements were made to the 10th Street property at a cost of $ 11,950. For the reasons set forth above, Plaintiff is entitled to a credit for this sum.
C. Checking Accounts: The balance of the parties' accounts at the time of separation was $ 227,745. Applying the approximate income percentages of 75% attributable to the Plaintiff and 25% to Defendant, division of the two accounts results in $ 170,808 to Plaintiff and $ 56,936 to Defendant.
D. Other Personal Property: The furniture in the marital home shall belong to Plaintiff and the furniture in the 10th Street house shall belong to Defendant. The patio and pool furniture and equipment shall belong to Plaintiff. The tools and equipment in the shop building shall belong to Defendant who shall remove such property within a reasonable period of time. The removal shall occur at a mutually convenient time. The shelving and other fixtures in the shop shall remain in place. The parties shall have title to and possession of their respective vehicles and all other personal property currently in their possession. Plaintiff shall also have a credit for payment of Defendant's separation expenses of $ 3,883. Plaintiff's payment of Defendant's pre-marital debt of $ 6,112 is considered a gift to Defendant.
E. In summary of the property division, Plaintiff shall pay Defendant the following sum:
$119,500 - interest in real estate + $56,936 - interest in bank accounts ________ $176,436 - $3,883 - Defendant's expenses after separation - $11,950 - improvements to 10th Street ________ $160,553 - payment to Defendant
5. The property division is fair and equitable according to the guidelines of A.C.A. § 9-12-317. The parties shall bear their own attorney's fees and costs and shall execute appropriate deeds of title.
This appeal followed.
II. Standard of Review
On appeal, this court reviews divorce cases de novo on the record. Taylor v. Taylor , 369 Ark. 31, 250 S.W.3d 232 (2007). Moreover, we will not reverse a circuit court's finding of fact in a divorce case unless it is clearly erroneous. Id. A circuit court's finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Doss v. Doss , 2018 Ark. App. 487, 561 S.W.3d 348. In order to demonstrate that the circuit court's ruling was erroneous, the appellant must show that the lower court abused its discretion by making a decision that was arbitrary or groundless. Kelly v. Kelly , 2014 Ark. 543, 453 S.W.3d 655. We give due deference to the circuit court's superior position to determine the credibility of witnesses and the weight to be given their testimony. Doss , supra ; Tipton v. Tipton , 2017 Ark. App. 601, 2017 WL 5163423.
III. Property Division
Benjamin argues that the circuit court erred in unequally dividing the marital property. He first alleges that the circuit court failed to address all the factors enumerated in Arkansas Code Annotated section 9-12-315(a)(1) (Repl. 2015) as required in its written findings. He does not dispute that the circuit court properly divided the marital residence (purchased for $ 250,000) and adjacent lot (purchased for $ 30,000) on Pleasant Oak Drive evenly to both parties. He further does not dispute that he was solely entitled to the home on East 10th Street or that the $ 41,000 used to pay off the reverse mortgage should be considered in calculating the amount Tamra would need to pay him in order to retain the marital residence and adjacent lot. Instead, Benjamin argues that the circuit court erred in not including the $ 81,000 used to improve the marital residence and adjacent lot in its valuation of his interest in the property. He additionally argues that the circuit court erred in awarding Tamra a credit of $ 11,950 for the funds used to improve the home on East 10th Street. He states that those funds simply should have been considered a gift to him. Finally, Benjamin argues that the circuit court erred in unequally dividing the joint bank accounts because the mere fact that Tamra placed more funds into the accounts is irrelevant. We disagree.
In accordance with Arkansas Code Annotated section 9-12-315(a)(1), at the time of entry of a divorce decree, the circuit court shall equally distribute all marital property one-half to each party unless it is determined that such a distribution would be inequitable; if the property is not divided equally, then the circuit court must state the reasons and bases for not doing so, and the bases and reasons should be recited in the order entered in the matter. Brown v. Brown , 2016 Ark. App. 172, 2016 WL 1039586. Factors to be considered by the circuit court if the marital property is not divided equally include the length of the marriage; the age, health, and station in life of the parties; the occupation of the parties; the amount and sources of income available to each party; vocational skills; employability; the estate, liabilities, and needs of each party and opportunity of each for further acquisition of capital assets and income; contribution of each party in acquisition, preservation, or appreciation of marital property, including homemaker services; and the federal income tax consequences of the court's division of property. Ark. Code Ann. § 9-12-315(a)(1)(A).
Here, the circuit court specifically considered the short length of the marriage (approximately four years) and the contributions of each party in its unequal division of the marital property. We cannot say that the circuit court's explanation is inadequate or insufficient. While the circuit court must consider the factors set forth in the statute and state its reasons for dividing the property unequally, it is not required to list each factor in its order or to weigh all the factors equally. Kelly , supra ; Hernandez v. Hernandez , 371 Ark. 323, 265 S.W.3d 746 (2007). Furthermore, the specific enumeration of the factors within the statute does not preclude a circuit court from considering other relevant factors if the exclusion of other factors would lead to absurd results or deny the intent of the legislature to allow for the equitable division of property. Kelly, supra. The statute requires the circuit court to explain its reasons for not dividing the marital property equally, and the circuit court here did just that.
Our appellate courts have consistently interpreted section 9-12-315(a) to grant the circuit court broad powers in distributing both nonmarital and marital property to achieve an equitable division. Id. We have held that any exception to the rule of equal distribution will always depend on the specific facts as reflected by the circuit court's findings and conclusions. Doss, supra. Our property-division statute does not compel mathematical precision in the distribution of property; its overriding purpose is to enable the court to make a division that is fair and equitable under the circumstances. Id. Further, it has long been held that a nonowning spouse is entitled to some benefit when marital funds have been expended to improve or reduce the debt on the other spouse's nonmarital property. Steeland v. Steeland , 2018 Ark. App. 551, 562 S.W.3d 269.
Here, it was undisputed that Tamra's income from her premarital interest in her family's trust was used to improve Benjamin's home on East 10th Street. It was also undisputed that Tamra sold her premarital residence during the marriage for $ 250,000 before purchasing their marital residence and making any improvements. The circuit court noted in the divorce decree that it could not determine whether the improvements to the marital residence and lot caused a corresponding increase in the value of the property of the same amount. Additionally, the circuit court specifically noted in the divorce decree that it considered the fact that Tamra earned 75 percent of the parties' combined income and used that percentage in dividing the bank accounts. Based on these facts, we hold that the circuit court considered and analyzed all the relevant and necessary factors to determine a fair and equitable division of the marital property. Because we cannot hold that the circuit court's ruling was clearly erroneous, we must affirm.
Affirmed.
Harrison and Brown, JJ., agree.
Although Tamra had filed a notice of cross-appeal, we granted her voluntary motion to dismiss her cross-appeal on March 7, 2019.
Much of the testimony at trial relates to Tamra's grounds for the divorce. Because Benjamin does not challenge on appeal whether the grounds for divorce were sufficient, it is unnecessary to discuss this testimony.
We note that after Benjamin filed his notice of appeal, the circuit court entered a second divorce decree nunc pro tunc to correct the omission in the first decree to restore Tamra to her former surname of Corley. The second divorce decree did not change any other findings, and although Benjamin did not amend his notice of appeal to include the second divorce decree, he does not contest the correction on appeal. | [
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RITA W. GRUBER, Chief Judge
Appellants, The TJX Companies, Inc., d/b/a T.J. Maxx and American Zurich Insurance Co., appeal a decision of the Arkansas Workers' Compensation Commission (Commission) finding that appellee Azzie Lopez sustained a compensable injury and awarding her medical and temporary total-disability (TTD) benefits. In this one-brief appeal, appellants contend that the Commission's decision is not supported by substantial evidence. We affirm.
Azzie Lopez was sixty-eight years old at the time of the May 4, 2018 hearing before the administrative law judge. She began working for T.J. Maxx in 2009 and was a jewelry associate at the time of the March 24, 2017 incident at issue. Lopez was clocking in after lunch when she heard a page that there was a phone call for jewelry. When she was on the phone with the customer, she did not hear the code being entered on the door, and another employee came in with her children. Lopez testified that the children ran up against the heavy door and it "came back and hit her in the back." She reported the accident to her supervisors, including Sherry Holmes, who had been coming down the hall as the door was opening. Lopez completed an accident report and was directed to go to the emergency room with a claim number to take with her. After finishing her shift, Lopez was seen at St. Bernard's Medical Center. According to the medical record, Lopez reported getting hit in the back by a door at work and having back pain. The record of the physical exam noted "Back: Mild midline tenderness in the L3-L5 area, no ecchymosis noted, no significant edema." Following an examination and x-ray, the physician's impression was "Back contusion"; Lopez was prescribed medication and directed to follow up with her family physician, Dr. Hurst.
Lopez saw Dr. Hurst on March 29, 2017. She testified that Dr. Hurst examined her and had her "stand up and do exercise." She explained that she was weak in her back and leg and that Dr. Hurst took her off work and referred her to physical therapy. In the medical record of the visit, Dr. Hurst noted,
I think it is okay for her to return to work. She is very reluctant to go to work. She states that she would like to try some physical therapy and some more time before she goes back to normal activities. We will put her in physical therapy and we will see her back in a week.
Lopez testified that she notified her employer and was contacted by "workers' comp" with arrangements for physical therapy at HealthSouth. A week after starting therapy, she was told by Valerie Wilkerson, a representative of the appellants, to stop treatment at HealthSouth and that Wilkerson would find a doctor for her. Lopez stated that she continued therapy when she did not hear from Wilkerson. She continued to see Dr. Hurst once a week for seven weeks. Wilkerson later told her to see Dr. Michael Lack along with a nurse case manager for an evaluation, which occurred on May 9, 2017. Lopez testified that Dr. Lack did not examine her but reviewed her records and an x-ray from the hospital. The medical record from the visit indicates that Dr. Lack did conduct a physical examination as it provided that Lopez could "stand on her heels and toes" and that Lopez "had no bruising or discoloration of the back." The medical record from the visit also states there was no "evidence of acute injury from getting hit in the back." According to Lopez, Dr. Lack told her she did not get hurt and could return to work without restrictions.
Lopez called to inform "corporate" that Dr. Lack returned her to work, but "corporate" told her that Dr. Lack had not taken her off work and that she was still under the care of Dr. Hurst. Lopez saw Dr. Hurst on May 11, 2017, and was released to return to work on May 15.
In addition to the testimony and medical evidence regarding the March 24 injury, there was also testimony and evidence introduced regarding Lopez's prior back problems. At the hearing, Lopez acknowledged her prior back issues, which included taking prescription medicine for back pain from arthritis as early as 2010 and up to the 2017 injury, as well as several months of chiropractic treatment following a January 2016 car accident. Lopez said that when she was released to return to work on May 15, she felt like she did before the March 24 injury.
Following the hearing, the administrative law judge found that Lopez had sustained a compensable injury and was entitled to medical and TTD benefits. In an opinion filed October 31, 2018, the Commission, in a split decision, affirmed the decision of the administrative law judge. Appellants filed a timely notice of appeal.
We review the Commission's decision in the light most favorable to its findings and affirm when the decision is supported by substantial evidence. Kiswire Pine Bluff, Inc. v. Segars , 2018 Ark. App. 296, at 3, 549 S.W.3d 410, 412. Substantial evidence is that which a reasonable mind might accept as adequate to support a conclusion. Id. The issue is not whether the appellate court might have reached a different result from the Commission, but whether reasonable minds could reach the result found by the Commission: if so, we must affirm. Id. The Commission determines credibility, weighs the evidence, and resolves conflicts in medical testimony and evidence. Id.
A compensable injury must be established by medical evidence supported by "objective findings." Ark. Code Ann. § 11-9-102(4)(D) (Repl. 2012). Objective findings cannot come under the voluntary control of the patient. Ark. Code Ann. § 11-9-102(16). There is no requirement that medical testimony be based solely or expressly on objective findings, only that the record contain supporting objective findings. Singleton v. City of Pine Bluff , 97 Ark. App. 59, 60, 244 S.W.3d 709, 711 (2006). To prove a specific-incident injury, the claimant must establish that the injury was one "arising out of and in the course of employment." Ark. Code Ann. § 11-9-102(4)(A)(ii).
Appellants first contend that the Commission erred in finding that the March 24, 2017 diagnosis of "contusion" was sufficient to meet Lopez's burden of proving a compensable back injury supported by objective medical findings. They argue that the Commission's decision ignored the physician's physical examination, which revealed "no ecchymosis" and relied on a generic diagnosis. In Ellis v. J.D. & Billy Hines Trucking, Inc. , 104 Ark. App. 118, 120, 289 S.W.3d 497, 499 (2008), we held that a diagnosis of contusion can be an objective medical finding when there is no conflicting testimony about the nature of the contusion. Appellants contend that there is conflicting evidence with regard to the contusion in the present case, which distinguishes it from Ellis. In Ellis , this court distinguished Rodriguez v. M. McDaniel Co. , 98 Ark. App. 138, 144, 252 S.W.3d 146, 152 (2007), where there was physician testimony that a contusion noted in the emergency-room record most likely "referred to tenderness and not to visible darkening or bruising." In affirming the Commission's decision, this court recognized that this was a matter of credibility for the Commission to resolve. Id.
In the present case, the conflict alleged by appellants is contained within the same emergency-room record. It is not a situation as in Rodriguez , where there was testimony from a doctor stating that the emergency-room diagnosis of contusion was more likely the result of tenderness rather than bruising. Moreover, the Commission gave little weight to Dr. Lack's May 9 opinion that there was no objective evidence of an injury. The Commission determines credibility, weighs the evidence, and resolves conflicts in medical testimony and evidence. Segars, supra. We cannot say that reasonable minds could not have reached the same conclusion as the Commission.
Next, appellants contend that even if the injury was compensable, substantial evidence does not support the Commission's award of TTD benefits. The Commission found that Lopez was within her healing period and was totally incapacitated from earning wages from March 25 through May 11, 2017. Appellants suggest there is nothing in the record to support the finding that Lopez was taken off work, because Dr. Hurst's March 29 medical record indicates that Dr. Hurst thought Lopez was "okay" to return to work.
TTD occurs when a claimant is within his or her healing period and suffers a total incapacity to earn wages. Univ. of Ark. at Pine Bluff v. Hopkins , 2018 Ark. App. 578, at 6-7, 561 S.W.3d 781, 786. The healing period continues until the employee is restored as much as the permanent character of his or her injury will permit; the healing period ends when the underlying condition that caused the disability is stabilized and no additional treatment will improve the condition. Id. The Commission determines as a matter of fact when the healing period has ended. Id. Its decision will be affirmed on appeal if it is supported by substantial evidence. Id. The claimant's "failure to return to work must be causally related to the injury." Id.
Following her March 24 injury, Lopez was directed to follow up with her family physician. In the medical record from her March 29 visit, Dr. Hurst noted that he thought she was "okay" to return to work but was reluctant and wanted to try physical therapy. Dr. Hurst referred her to physical therapy and directed her to return in a week. Lopez testified that Dr. Hurst took her off work and sent her to physical therapy. Six weeks following the injury, appellants had Lopez undergo an evaluation by Dr. Lack on May 9. Dr. Lack's record, while noting Lopez's significant back problems, indicated there was no evidence of acute injury, and returned Lopez to work without restrictions on May 9. When Lopez notified appellants that she had been released by Dr. Lack, she was told she needed to be released by Dr. Hurst because he was her treating physician. Lopez returned to Dr. Hurst on May 11 and was released to return to work on May 15.
While appellants argue that the evidence fails to show that Lopez was taken off work, any conflicts in the evidence were for the Commission to resolve. Segars, supra. Here, Dr. Hurst ordered physical therapy and corporate did not allow Lopez to return to work until released by Dr. Hurst. Lopez's testimony and the medical records support the Commission's finding that Lopez remained in her healing period until May 15. We therefore hold that substantial evidence supports the Commission's decision to award TTD benefits.
Finally, appellants contend that even if the injury is compensable, the Commission's award of additional medical benefits-specifically physical therapy-is not supported by substantial evidence. After examining Lopez on March 29, Dr. Hurst's assessment was thoracic strain, lumbar strain, and work-related injury. As stated previously, Dr. Hurst ultimately ordered physical therapy for his patient. Further, the Commission placed "minimal evidentiary weight" on Dr. Lack's opinion that there was no objective evidence of an injury and found Lopez's testimony "credible and worthy of belief." We cannot say that fair-minded persons with the same facts before them could not have reached the conclusions arrived at by the Commission. Therefore, we affirm the Commission's decision to award additional medical treatment.
Affirmed.
Klappenbach and Murphy, JJ., agree.
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COURTNEY HUDSON GOODSON, Associate Justice
Appellant Ronnie R. Collins appeals from his conviction for capital murder, for which he was sentenced to life imprisonment. For reversal, Collins argues that the circuit court abused its discretion in not allowing him to impeach a prosecution witness's credibility with extrinsic evidence of her mental disorder. We affirm.
On June 17, 2015, Collins was charged with the premeditated and deliberated capital murder of Jonathan Brown. Collins was also charged with employing a firearm during the commission of the offense. The State filed an amended information on October 17, 2017, asserting that Collins was a habitual offender with four or more prior felonies. Although Collins does not challenge the sufficiency of the evidence, a brief recitation of the facts and the evidence presented at the October 2017 jury trial is helpful to understand the issue presented on appeal.
In the early morning hours of May 8, 2015, Brown was shot and killed inside Larry Bailey's residence. Bailey testified that he often let homeless persons stay at his home, and he indicated that on the night of the murder, there were five others sleeping there-Brown, who was sleeping in the living room on the floor; Preston Hopkins, who was sleeping on the living-room couch; a female identified as "Toledo," who was sleeping in the bedroom with Bailey; Collins, who was sleeping on a pallet in the kitchen area; and Collins's girlfriend, Lakeesha Jackson, who was sleeping next to Collins. Bailey stated that he heard Brown and Collins, whom Bailey knew as "N.O.," arguing that morning and that he got up and was standing at the bedroom doorway looking into the living room when he saw Collins shoot Brown three times with a black pistol. According to Bailey, Collins and the other individuals then left the house, and Bailey went across the street to use his neighbor's phone to call 911. Bailey indicated that while he was across the street on his neighbor's front porch, he witnessed Collins go back inside the house, heard a fourth gunshot, and then saw Collins exit the house and walk down the alley. Bailey testified that he did not see Collins again after the shooting.
Lakeesha Jackson testified that she had been dating Collins for approximately one month at the time of the shooting. She stated that on May 8, 2015, she arrived at Bailey's home around 3:00 a.m. to find Collins asleep on his pallet in the kitchen with a black .45 semiautomatic pistol on his chest. Jackson put the gun on the floor, laid down beside Collins, and went to sleep. She testified that a couple of hours later, Brown was getting ready for work and asked Collins what time it was. According to Jackson, Collins and Brown began arguing. Collins walked into the living room, and Jackson then heard multiple gunshots. Jackson stated that she did not actually see Collins shoot Brown. She indicated that everyone left the house after the shooting, including Collins, although she remembered seeing Collins return to the house and hearing one more gunshot.
The medical examiner testified that Brown had been shot twice in his right arm, once in his right thigh, and once in his chest and that he died from multiple gunshot wounds. Jennifer Floyd, the firearm and tool-mark examiner, indicated that all four of the bullets and all of the cartridge cases were .45 caliber and were fired from the same gun, which was never recovered. Megan Buchert, the crime-scene specialist, further testified that additional rounds of .45-caliber bullets were found in a black bag near the pallet where Collins had been sleeping.
The jury found Collins guilty of the premeditated and deliberated capital murder of Brown and of using a firearm during the commission of the offense. Because the State waived the death penalty, Collins was sentenced by the circuit court to life in prison. He also agreed to have the circuit court sentence him on the firearm enhancement, for which he received a sentence of zero years' imprisonment. The sentencing order was entered on November 17, 2017, and an amended sentencing order was filed on December 4, 2017. Collins timely appealed from his conviction and sentence.
In his sole point on appeal, Collins contends that the circuit court abused its discretion by not allowing him to impeach Lakeesha Jackson's credibility with extrinsic evidence that she suffered from a mental disorder, specifically, schizophrenia. Prior to trial, Collins filed a motion requesting that the circuit court issue an order directing the release of Jackson's mental-health records from July 1, 2014, to September 20, 2017. Collins argued that evidence of Jackson's mental state, both currently and at the time of the alleged offense in 2015, was relevant due to the nature of her anticipated testimony at trial. The State argued that Jackson's patient-psychotherapist privilege under Arkansas Rule of Evidence 503 (2017) barred discovery of these records. The circuit court denied Collins's motion.
Prior to the start of trial, defense counsel indicated that it had obtained certified circuit court documents from several unrelated cases involving Jackson in 2011 and 2016 that contained information pertaining to her schizophrenia. The State asserted that there was no evidence that Jackson was suffering from a psychotic disorder either currently or at the time of the murder and asked that the circuit court exclude this evidence as irrelevant. Collins responded that the court records in his possession indicated that Jackson's mental health was an ongoing issue, and he requested that he be allowed to use these documents to impeach her on cross-examination if the matter was brought up during her direct examination. The circuit court reserved ruling on this issue until Jackson testified.
During Jackson's direct-examination testimony, she indicated that she had spent time at a certain psychiatric facility in connection with a prior criminal charge. Collins renewed his request to impeach Jackson's credibility with the court documents pertaining to her mental disorder, arguing that she had opened the door to admission of this evidence. The circuit court denied this request. Collins later proffered the relevant court records into the record.
Circuit courts have broad discretion on evidentiary issues, and we will not reverse a circuit court's ruling on the admission of evidence in the absence of an abuse of discretion. Friar v. State , 2016 Ark. 245, 2016 WL 3346565. An abuse of discretion is a high threshold that does not simply require error in the circuit court's decision, but requires that the circuit court act improvidently, thoughtlessly, or without due consideration. Hortenberry v. State , 2017 Ark. 261, 526 S.W.3d 840. Furthermore, we will not reverse unless the appellant demonstrates that he was prejudiced by the evidentiary ruling. Edison v. State , 2015 Ark. 376, 472 S.W.3d 474.
Collins argues that the circuit court erred in two ways by denying his request to utilize evidence of Jackson's mental disorder to impeach her testimony. First, he asserts that the court erred by not examining the mental-health records at issue before ruling on their admissibility. He cites United States v. Sasso , 59 F.3d 341 (2d Cir. 1995), which set forth three factors for a court to consider when assessing the probative value of a witness's mental-health records: (1) the nature of the psychological problem; (2) the temporal recency or remoteness of the history; and (3) whether the witness suffered from the problem at the time he or she observed the relevant events.
Collins did not make this particular argument to the circuit court or request that it examine the records prior to rendering its ruling, however. An appellant is bound by the scope and nature of the arguments made at trial and may not change or enlarge those grounds on appeal. Stewart v. State , 2012 Ark. 349, 423 S.W.3d 69. Because Collins's argument is raised for the first time on appeal, it is not preserved for our review.
Collins next contends that the circuit court erred by erroneously interpreting our common law of evidence governing impeachment of the credibility of a witness afflicted with mental illness. As he did below, he cites to Mell v. State , 133 Ark. 197, 202 S.W. 33 (1918), wherein this court held that evidence of a witness's insane delusions was admissible in order to challenge her credibility. See also Mangrum v. State , 227 Ark. 381, 299 S.W.2d 80 (1957) (stating that insanity or mental delusions of a witness may be shown by the testimony of another witness).
The State responds by asserting that Collins's right to cross-examine Jackson was limited by the psychotherapist-patient privilege in Arkansas Rule of Evidence 503. This rule provides that a "patient has a privilege to refuse to disclose and to prevent any other person from disclosing his medical records or confidential communications made for the purpose of diagnosis or treatment of his physical, mental or emotional condition[.]" Ark. R. Evid. 503(b). Although this privilege is waived if a party in a civil or criminal proceeding brings his mental or physical condition into issue, a witness in a criminal case does not waive his privilege by testifying because the State, not the witness, is the party in a criminal proceeding. Johnson v. State , 342 Ark. 186, 27 S.W.3d 405 (2000).
Collins does not address in his brief whether Rule 503 would have applied to prevent admission of any of the proffered documents at issue. Even assuming, however, that Rule 503 did not apply and that the circuit court erred by refusing to allow this evidence to impeach Jackson's credibility, we agree with the State's alternative argument that any error would be harmless under the facts in this case.
We may declare an evidentiary error harmless if the evidence of guilt is overwhelming and the error is slight. Johnston v. State , 2014 Ark. 110, 431 S.W.3d 895. Here, the error, if any, was slight, as Jackson's credibility was impeached by other evidence such as the inconsistencies in her prior statement to police and her prior criminal history. Thus, any prejudice to Collins from the exclusion of evidence about Jackson's mental illness was minimal. Buford v. State , 368 Ark. 87, 91, 243 S.W.3d 300, 303 (2006) ("To determine if the error is slight, we can look to see if the defendant was prejudiced."). Furthermore, there was overwhelming evidence of Collins's guilt through Bailey's testimony and other corroborating physical evidence. While Jackson denied seeing Collins shoot Brown, Bailey was an eyewitness to the crime. Bailey testified that he witnessed Collins shoot Brown three times, leave the home, and then return to shoot Brown a fourth time. Bailey's testimony was corroborated by the location of the spent cartridges found inside the home. In addition, while Jackson's testimony placed Collins with a pistol right before the murder, there was also other evidence admitted that a bag found near where Collins was sleeping contained additional rounds of the same caliber ammunition that was used in the murder. Accordingly, even if the exclusion of the proffered records was erroneous, we conclude that it was harmless error. See Buford , supra (affirming based on harmless error because prejudice was minimal and there was independent eyewitness testimony of the crime).
Rule 4-3(i) Review
Because Collins received a life sentence, the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Collins in compliance with Arkansas Supreme Court Rule 4-3(i), and no prejudicial error has been found. We therefore affirm.
Affirmed.
Hart, J., dissents.
Josephine Linker Hart, Justice, dissenting.
I dissent. Mr. Collins's argument is compelling: the circuit court abused its discretion in denying his request to use extrinsic evidence that State's eyewitness Lakeesha Jackson had been diagnosed with schizophrenia for the purpose of impeaching the witness's credibility. He asserts that the circuit court abused its discretion in two ways: (1) by failing to even look at his proffered evidence-which necessarily means that the circuit court ruled without due consideration; and (2)by failing to properly apply mandatory authority that required it to admit the extrinsic evidence of Ms. Jackson's mental disease.
Regarding the latter point first, extrinsic evidence of a prosecution witness's mental health has long been held admissible under Arkansas law. Mell v. State , 133 Ark. 197, 200-01, 202 S.W. 33, 34 (1918). In Mell , this court specifically discussed the situation in which, as in the case before us, a prosecution witness was competent to testify, but circumstantial proof regarding the extent of his or her insanity was admissible to challenge the witness's credibility. Mell is directly on point. Accordingly, the circuit court was obligated to follow this precedent. The failure to follow binding precedent constitutes an abuse of discretion. An abuse of discretion is established when the circuit court erroneously interprets or incorrectly applies the law. McClanahan v. State , 2010 Ark. 39, 358 S.W.3d 900 ; Reeves v. State , 374 Ark. 415, 288 S.W.3d 577 (2008). Under this doctrine, we are obligated to decide a similar issue in a manner consistent with our prior decision. Williams v. State , 2019 Ark. 96, 571 S.W.3d 3.
The suggestion by the majority that the State's argument that this evidence was inadmissible under the psychotherapist-patient privilege found in Rule 503 of the Arkansas Rules of Evidence needed to be addressed by Collins is simply wrong. First, it was not the basis for excluding the evidence asserted by the circuit court. Second, Rule 503 is not applicable to this situation because the record is clear that Ms. Jackson did not assert the privilege. Rule 503 explicitly states that this privilege may only be claimed by Ms. Jackson or her representative, subject to very few exceptions that are not applicable here. Rule 503 states in pertinent part:
(c) Who May Claim the Privilege. The privilege may be claimed by the patient, his guardian or conservator, or the personal representative of a deceased patient. The person who was the physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.
(d) Exceptions.
(1) Proceedings for Hospitalization. There is no privilege under this rule for communications relevant to an issue in proceedings to hospitalize the patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has determined that the patient is in need of hospitalization.
(2) Examination by Order of Court. If the court orders an examination of the physical, mental, or emotional condition of a patient, whether a party or a witness, communications made in the course thereof are not privileged under this rule with respect to the particular purpose for which the examination is ordered unless the court orders otherwise.
(3) Condition and Element of Claim or Defense.
A. There is no privilege under this rule as to medical records or communications relevant to an issue of the physical, mental, or emotional condition of the patient in any proceeding in which he or she relies upon the condition as an element of his or her claim or defense, or, after the patient's death, in any proceeding in which any party relies upon the condition as an element of his or her claim or defense.
B. Any informal, ex parte contact or communication with the patient's physician or psychotherapist is prohibited, unless the patient expressly consents. The patient shall not be required, by order of court or otherwise, to authorize any communication with the physician or psychotherapist other than (i) the furnishing of medical records, and (ii) communications in the context of formal discovery procedures.
The State's argument is not only unpersuasive, because it is completely lacking in factual or legal basis, it is arguably sanctionable.
Finally, the majority's contention under this rubric that the error was "harmless" rests on a misstatement and misapplication of the harmless-error doctrine. In Winfrey v. State , 293 Ark. 342, 738 S.W.2d 391 (1987), this court refused to find harmless a circuit court's erroneous decision to prohibit a criminal defendant from using on cross-examination the victims' prior-inconsistent statements. The Winfrey court stated that evidentiary rulings that impaired a criminal defendant's ability to cross-examine the victims implicated the defendant's rights under the Confrontation Clause. 293 Ark. at 343-44, 738 S.W.2d at 393-94 (citing Delaware v. Fensterer , 474 U.S. 15, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) ; Pennsylvania v. Ritchie , 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) ; Davis v. Alaska , 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) ). Thus, to be harmless, the error must be harmless beyond a reasonable doubt. Id.
The majority's reliance on Buford v. State , 368 Ark. 87, 91, 243 S.W.3d 300, 303 (2006), is therefore misplaced. Buford involved a circuit court's erroneous decision to allow an "expert" to opine as to whether a rape victim was telling the truth. The Buford court found that the error was harmless because there was "overwhelming" evidence; the victim provided "graphic details" of the rape, which were independently corroborated by three witnesses who observed the rape through a window; and the arresting officer testified that when the defendant was found with the victim in his vehicle, he gave a false name and falsely identified the victim as his nephew.
Obviously, the evidence in Buford was not intended for use in cross-examination, so the Confrontation Clause was not implicated. Accordingly, Buford is not on point. Furthermore, the evidence in this case is not overwhelming. Only Ms. Jackson's testimony put the actual murder weapon, a .45-caliber handgun, in Collins's hands. While the State introduced shell casings and bullets recovered from the victim, the gun was never found by police, and it was not introduced into evidence at trial. Ms. Jackson's testimony was also necessary to corroborate Bailey's testimony. Unlike the identical stories in Buford , Baily's testimony was contradicted in part by Lisa Burton. Thus, whether Collins was prejudiced or not, his conviction for capital murder proves that the State's witnesses were believed.
The harmless-error analysis put forward by the majority in the case before us is precisely the type of harmless-error analysis that this court rejected in Rogers v. State , 2018 Ark. 309, 558 S.W.3d 833 ( Rogers II ). In Rogers II , we granted rehearing and reversed Rogers v. State , 2018 Ark. 242, 550 S.W.3d 387 ( Rogers I ). As in the case before us, the majority in Rogers I relied on Buford .
Finally, regarding the first part of Collins's argument, the majority's creative use of a procedural bar is troubling. As with any evidentiary ruling that is challenged on appeal, it is reviewed under an abuse-of-discretion standard. Threadgill v. State , 347 Ark. 986, 993, 69 S.W.3d 423, 428 (2002). We have repeatedly stated that an abuse of discretion occurs when the ruling is improvident, thoughtless, or without due consideration. Id. Collins did not stray from his basic argument---that the circuit court abused its discretion by excluding his proffered evidence---because his use of United States v. Sasso , 59 F.3d 341 (2d Cir. 1995), was merely as an example of what another court considers to be due consideration when deciding whether to admit into evidence a witness's mental-health records. In the case before us, the record indicates that the circuit court made no effort to examine the content of the documents that Collins proffered. It is a meager enough proposition that "due consideration" of evidence that a circuit court is asked to admit at trial would necessarily include that the circuit court examine what the evidence is. Certainly, that portion of Collins's argument is preserved.
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THE COURT : I'll say it one more time, and that's the last time I'm going to say it, I will let you represent yourself. You have that constitutional right. I am not going to micromanage the way attorneys represent their clients.
THE DEFENDANT : Well, yes, sir, I would like to represent myself.
At this point in the proceeding, Shabazz's appointed counsel handed to him the discovery he had received from the State and the motions that had been filed by counsel on his behalf. The following colloquy between the court and Shabazz occurred:
THE COURT : And I'm going to let you represent yourself, but I'm going to just give you one little spiel that I tell people that want to represent themselves. You know, you haven't been trained in the law. Do you have a college degree?
THE DEFENDANT : No, sir.
THE COURT : And you obviously haven't been to law school. I tell people all the time, I've tried 150 jury trials when I was prosecutor and I wouldn't represent myself. With that in mind, do you still wish to represent yourself?
(No response)
THE COURT : Mr. Shabazz?
THE DEFENDANT : Sir?
THE COURT : Do you still wish to represent yourself?
(No response)
THE COURT : I'll ask you one more time. Do you still wish to represent yourself?
THE DEFENDANT : Your Honor, at this - I would like to continue to proceed with [counsel] at this time-. And so I can read this thing that he has-.
Hearing that Shabazz desired to continue with appointed counsel, the court then began to reschedule the motions and jury-trial settings to a subsequent date during the month of August. When Shabazz learned that the hearing on his motions would not be heard until August, the following colloquy between the court and Shabazz occurred:
THE DEFENDANT : On August 10?
THE COURT : August 10.
THE DEFENDANT : Oh, no, sir. If-. I would proceed for myself today instead of sit in jail, Your Honor. I'd rather proceed myself today.
THE COURT : You'd like to go to trial next Tuesday?
(No response)
THE COURT : That's when your trial is set now.
THE DEFENDANT : And you said you're going to set if off to August the what?
THE COURT : Well, that's my next trial date here in this county.
THE DEFENDANT : August the what?
THE COURT : August 10, pretrial; August 23, trial. I'm in even months for my jury trials. Judge Yeargan is odd months.
THE DEFENDANT : If I represent myself, when can my hearings - when can my motions be ruled on?
THE COURT : Today.
THE DEFENDANT : You'll rule on my motion today?
THE COURT : I will.
THE DEFENDANT : Well, -. And there's no other way for my motion to be ruled unless I dismiss counsel?
THE COURT : Yeah. You can't - If you have an attorney, he files the pleadings for you. If you don't have an attorney, you file - you act as your own attorney and you file the pleadings. You see, because if you're filing them and your attorney's filing them, they could be inconsistent or conflicting.
THE DEFENDANT : And there's no way-.
THE COURT : So your choice is represent yourself, which I would not recommend under any circumstances, go to trial next Tuesday, motions today; or I'll continue your case, leave [counsel] on, and we'll have your pretrial August 10 and your trial August 23.
THE DEFENDANT : Well, Your Honor, I'd like to represent myself if you'll rule on my motions today.
THE COURT : Okay. You all ready?
After a recess, the court began the hearing on the motion to suppress with the following colloquy:
THE COURT : Are you ready to go forward on your motion to suppress?
THE DEFENDANT : Yes, sir.
THE COURT : I see that you filed a motion to suppress evidence and dismiss. Any other motions that you have today?
THE DEFENDANT : No, sir.
THE COURT : Let me look. Here's something else that you filed. Let me get to it. Oh, that's just -. That's the only motion. Are you ready to go forward? Do you have any witnesses?
....
THE COURT : Before we go forward, we had a long discussion earlier today, and I know I've seen a lot of people since then, and you made a decision --. After I questioned you, you made a decision that you think it's in your best interest to represent yourself. Is that correct?
THE DEFENDANT : Yes, sir.
[ DEFENSE COUNSEL ]: So -
THE COURT : Do you want [defense counsel] standing close in case you have questions? Do you want him to assist you?
THE DEFENDANT : If he would like -. If he wants to, I don't have any problem with it.
THE COURT : I'll ask him to stand close and be available if you would like?
THE DEFENDANT : It's okay with me.
THE COURT : Okay. [Defense counsel], just have a seat.
[ DEFENSE COUNSEL ]: Yes, sir.
The trial court then held the suppression hearing. Shabazz conducted the cross-examination of all the State's witnesses. Defense counsel was on hand during the questioning, but it does not appear that Shabazz requested his assistance. In fact, defense counsel left the courtroom to take a phone call during the questioning of one of the State's witnesses.
After the State rested its case, the court asked if Shabazz had any witnesses he wished to call. Shabazz indicated that there was additional information that he needed in order to go forward with his defense. The following colloquy took place:
[ PROSECUTOR ]: State rests.
THE COURT : Mr. Shabazz, call your first,
THE DEFENDANT : Oh.
THE COURT : Do you wish to testify?
THE DEFENDANT : No. You said the next witness.
THE COURT : Or you can make legal arguments.
THE DEFENDANT : Your Honor, is- could I see the law on -[ PROSECUTOR ]: I just want to clarify, he's not going to call witnesses before we start going-
THE COURT : Are you going to call any witnesses?
THE DEFENDANT : I would like more physical evidence, the logs at the time -
THE COURT : Well, let me ask you -
THE DEFENDANT : At the time -
THE COURT : Stay focused on one question at a time. Do you wish to call any witnesses?
THE DEFENDANT : No more physical -
THE COURT : I'm sorry?
THE DEFENDANT : No more witnesses.
THE COURT : Okay. You have no witnesses.
THE DEFENDANT : No more witnesses, no, sir.
THE COURT : Do you wish to make a legal argument to me?
THE DEFENDANT : Your Honor, is there any way I could see the log on certification and radar guns?
THE COURT : You're representing yourself. You're going to have to find all that information.
THE DEFENDANT : So I would have to find that information on my own?
THE COURT : It would be incumbent on you and your burden to bring that forward if you feel it was necessary at this hearing or trial.
THE DEFENDANT : Is there any way we could set a continuance for a few days and - so I could get that evidence?
THE COURT : It was your choice to go forward on the suppression hearing today, Mr. Shabazz. Do you have any legal arguments you wish to make concerning the - your motion to suppress?
Shabazz, with the help of standby counsel, then attempted to articulate his legal basis for suppression. At the conclusion of the hearing, the trial court denied his motion. At that point, Shabazz informed the court he would need help at trial, and the trial court reappointed defense counsel to represent him at trial. Shabazz was found guilty at trial and sentenced to thirty years. In this appeal, Shabazz argues that the suppression hearing was a critical stage of the proceedings, that he did not knowingly and intelligently waive his right to counsel at that hearing, and that he should be granted a new trial.
III. Analysis
Our standard of review is whether the trial court's finding that the waiver of rights was knowingly and intelligently made was clearly against the preponderance of the evidence. Pierce v. State , 362 Ark. 491, 209 S.W.3d 364 (2005).
A. Critical-Stage Analysis
The United States Supreme Court has provided the following case law concerning our critical-stage analysis: (1) A criminal defendant has a Sixth Amendment right to an attorney at every critical stage of the proceedings. Hammett v. Texas , 448 U.S. 725, 100 S.Ct. 2905, 65 L.Ed.2d 1086 (1980) ; (2) A stage is a critical stage in a criminal proceeding if the substantial rights of the criminal defendant may be affected. Mempa v. Rhay , 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) ; and (3) The complete denial of counsel during a critical stage of a judicial proceeding mandates a presumption of prejudice because the adversary process itself has been rendered presumptively unreliable. Roe v. Flores-Ortega , 528 U.S. 470, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). Our supreme court has held that a critical stage is characterized by an opportunity for the exercise of judicial discretion or when certain legal rights may be lost if not exercised at that stage. Anderson v. State , 367 Ark. 536, 242 S.W.3d 229 (2006).
We hold that a suppression hearing is a critical stage of the proceeding because if the suppression court determines that evidence is admissible, that determination is final, conclusive, and binding at trial. In fact, the court's decision on a motion to suppress may often spell the difference between a conviction or an acquittal. Thus, we conclude that the Sixth Amendment right to counsel applies to suppression hearings. The issue then becomes whether Shabazz validly waived that right.
B. Waiver Analysis
In Faretta v. California , 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the United States Supreme Court held that before an accused manages his or her own defense, the accused must first "knowingly and intelligently" waive the right to counsel. Furthermore, the trial court maintains a weighty responsibility in determining whether an accused has "knowingly and intelligently" waived this right. Johnson v. Zerbst , 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938) ; Murdock v. State , 291 Ark. 8, 722 S.W.2d 268 (1987). Every reasonable presumption must be indulged against the waiver of fundamental constitutional rights. Brewer v. Williams , 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977).
The burden is on the State to show that an accused voluntarily and intelligently waived his or her fundamental right to the assistance of counsel. Hatfield v. State , 346 Ark. 319, 57 S.W.3d 696 (2001). We determine whether an intelligent waiver of the right to counsel has been made in each case on the particular facts and circumstances, including the background, the experience, and the conduct of the accused. Bledsoe v. State , 337 Ark. 403, 989 S.W.2d 510 (1999). While a case-by-case approach is used to determine intelligent waiver of counsel, a specific warning of the dangers and disadvantages of self-representation-or a record showing that the defendant possessed such required knowledge from other sources-is required to establish the validity of a waiver. Id. Our supreme court has held that the "constitutional minimum" for determining whether a waiver was knowing and intelligent is that the accused be made sufficiently aware of his or her right to have counsel present and of the possible consequences of a decision to forgo the aid of counsel. Id.
We hold under these particular facts and circumstances that Shabazz's waiver was not knowingly or intelligently made. The court was the first to suggest that Shabazz proceed pro se. Shabazz initially indicated that he did not want to proceed pro se; rather, he simply indicated his unhappiness with his current counsel and wanted other counsel appointed. Only when the court informed him that he could not have other appointed counsel and that his trial date would be postponed if he continued with current counsel did Shabazz seemingly agree to proceed pro se; but even then, his agreement was tenuous. We also note there was limited inquiry into his educational history or background with the criminal-justice system. In this regard, the court inquired only if Shabazz had a college degree, to which Shabazz answered no. The court never inquired into Shabazz's experience with the criminal-justice system. Moreover, while the trial court explained that even with his own experience in criminal matters he would not represent himself, we conclude that this was inadequate to explain the legal pitfalls of self-representation. The trial court did not adequately explain the risks or the consequences of proceeding without counsel; nor did the court inform Shabazz of the danger of proceeding so quickly with the suppression hearing without the benefit of counsel or the completion of discovery. In short, we conclude that there was simply an insufficient investigation into whether Shabazz's willingness to proceed was knowingly or intelligently asserted, and the trial court's questioning as to his wish to proceed pro se did not meet the constitutional minimum as set forth by our supreme court.
The State contends that because this was a pretrial proceeding, this court should apply the "less searching or formal colloquy" standard set forth in Iowa v. Tovar , 541 U.S. 77, 124 S.Ct. 1379, 158 L.Ed.2d 209 (2004). The State essentially argues that Tovar mandates "a less searching or formal colloquy" concerning the Sixth Amendment right to counsel in all pretrial proceedings. We disagree.
The issue in Tovar is distinguishable from this appeal. Tovar was arrested and charged with third-offense operating while intoxicated (OWI), a class D felony. To sustain this charge, the State of Iowa would need to prove prior OWI convictions as a sentencing enhancement. Tovar moved to preclude the use of his first OWI conviction, because it was the result of an uncounseled guilty plea. If successful in this preclusion, Tovar could be found guilty of only an aggravated misdemeanor. Thus, Tovar involved a collateral attack on an uncounseled conviction by guilty plea and, as a collateral attack, it was Tovar's burden to prove that he did not competently and intelligently waive his right to assistance of counsel. In fact, the Supreme Court in Tovar noted that it was addressing a very narrow question: "Does the Sixth Amendment require a court to give a rigid and detailed admonishment to a pro se defendant pleading guilty of the usefulness of an attorney, that an attorney may provide an independent opinion whether it is wise to plead guilty and that without an attorney the defendant risks overlooking a defense?" Tovar , 541 U.S. at 91, 124 S.Ct. 1379. The Supreme Court answered that very narrow question no. We do not have the same narrow issue in this appeal, and Shabazz, unlike Tovar, did not have the burden to prove anything concerning his Sixth Amendment right to counsel. Rather, the State had the burden to prove that his waiver was knowingly and intelligently made.
We conclude that Tovar does not stand for a bright-line mandate that "a less searching or formal colloquy" concerning the Sixth Amendment right to counsel applies in all pretrial proceedings. The State's argument treats all pretrial proceedings the same. They are not. Tovar involved a pretrial plea hearing. Here, we have a pretrial suppression hearing. They are very different in their composition. Unlike a plea hearing, evidence is introduced at a suppression hearing. As such, evidentiary rules apply; witnesses are called and examined; and certain trial tactics and strategies might reasonably be employed for the benefit of the defendant. In this way, suppression hearings are more akin to a trial in which the more rigid Faretta analysis applies. While the Supreme Court in Tovar did indicate that a more relaxed approach to the Sixth Amendment may suffice at some earlier stages of the criminal process, it reiterated the more "pragmatic approach to the waiver question." Id. at 90, 124 S.Ct. 1379 (quoting Patterson v. Illinois , 487 U.S. 285, 108 S.Ct. 2389, 101 L.Ed.2d 261 (1988) ). In Patterson , the Supreme Court stated that courts must look to "what purposes a lawyer can serve at the particular stage of the proceedings in question, and what assistance he could provide to an accused at that stage," in order to "determine the scope of the Sixth Amendment right to counsel, and the type of warnings and procedures that should be required before a waiver of that right will be recognized." Patterson , 487 U.S. at 298, 108 S.Ct. 2389. We hold that because suppression hearings, unlike plea hearings, more closely resemble a trial, a more relaxed or less formal inquiry is not sufficient. Therefore, the more heightened Faretta standard of review governing trials should control.
The State argues that even if the trial court erred in allowing Shabazz to proceed pro se, the decision was harmless because Shabazz was provided the assistance of standby counsel. The State is correct that the assistance of standby counsel can rise to such a level that the defendant is deemed to have had counsel for his or her defense, thereby mooting any assertion of involuntary waiver. Hatfield , 346 Ark. 319, 57 S.W.3d 696. Whether such assistance rises to that level is a question that must be answered by looking at the totality of the circumstances. Id. Our cases on this issue demonstrate that the assistance must be substantial, such that counsel was effectively conducting a defense. Id. Viewing the totality of the circumstances, we hold that the role of standby counsel in this case was not substantial. Counsel did not participate in the questioning of the witnesses and even left the courtroom at one point. While counsel did provide some limited assistance to Shabazz, such assistance was not so substantial as to render harmless the improper waiver of counsel.
Shabazz contends that the violation of his right to counsel should result in a new trial. The State, on the other hand, argues that Shabazz is entitled only to a new suppression hearing. We disagree.
Our supreme court acknowledged in Young v. State , 370 Ark. 147, 257 S.W.3d 870 (2007), that as a general rule, most trial errors, including constitutional ones, do not automatically require reversal of a criminal conviction. Unlike ordinary trial errors, however, structural defects in the constitution of the trial mechanism defy analysis by harmless-error standards. See Sullivan v. Louisiana , 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993) (citing Arizona v. Fulminante , 499 U.S. 279, at 309 (1991) ). The Supreme Court has recognized that the Sixth Amendment right to counsel is among those "constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error," Chapman v. California , 386 U.S. 18, at 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). In other words, when counsel is absent during a critical stage, such as here, the defendant need not show prejudice. Rather, prejudice is presumed "because the adversary process itself has become presumptively unreliable." Roe v. Flores-Ortega , 528 U.S. 470, 483, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000) (quoting United States v. Cronic , 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) ) (quotation marks omitted).
We hold that the denial of counsel at a suppression hearing is a structural defect requiring absolute reversal. We are not alone in this conclusion. The Third Circuit Court of Appeals has also determined that the proper remedy for a Sixth Amendment denial-of-counsel violation during pretrial proceedings is a new trial. See Henderson v. Frank , 155 F.3d 159, 171 (3d Cir. 1998). In Henderson , the Third Circuit found that the deprivation of counsel at a suppression hearing resulted in the loss of "much more than an opportunity to have his confession suppressed." Id. at 169. Instead, Henderson suffered a "procedural, structural defect which may have had repercussions in plea bargaining, discovery and trial strategy that would not be cured by a new suppression hearing alone" for the "existence of structural defects ... requires automatic reversal of the conviction because they infect the entire trial process." Id. at 169-70, 171 (quoting Brecht v. Abrahamson , 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ). As a result, the Third Circuit concluded that "the deprivation of Henderson's right to counsel at the suppression hearing is one of the structural defects in the constitution of the trial mechanism, which defy analysis by harmless-error standards" and thus require a new trial to correct. Id. at 170 (quoting Fulminante , 499 U.S. at 309, 111 S.Ct. 1246 ). We acknowledge that the Henderson case is a federal habeas corpus case; however, we do not believe that fact changes the fundamental premise supporting its conclusion.
Moreover, we find the cases cited by the State distinguishable. None of the cases cited by the State involved a Sixth Amendment right to counsel; therefore, they simply do not involve the type of structural error at issue here. See Young v. State , 370 Ark. 147, 257 S.W.3d 870 (2007) (insufficient proof of voluntariness of confession); George v. State , 356 Ark. 345, 151 S.W.3d 770 (2004) (suppression hearing not included in the record); Moore v. State , 303 Ark. 1, 791 S.W.2d 698 (1990) (failure to conduct a Denno hearing); Taffner v. State , 2018 Ark. 99, 541 S.W.3d 430 (failure to hold an in camera Ritchie review of DHS file).
We hold that an accused is entitled to relief from a conviction whenever the proceedings indicate the unfairness of trial without the help of a lawyer. See Gibson v. State , 298 Ark. 43, 764 S.W.2d 617 (1989). That is the case here. Therefore, we reverse Shabazz's conviction and remand for retrial.
Reversed and remanded.
Gruber, C.J., and Abramson, Gladwin, Hixson and Murphy, JJ., agree.
The State in its brief refers this court to Shabazz's criminal history and his apparent self-representation in other previous criminal or postconviction matters; however, there is no evidence that the trial court was aware of this information at the time it decided to allow Shabazz to represent himself.
Jackson v. Denno , 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964).
Pennsylvania v. Ritchie , 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987). | [
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LARRY D. VAUGHT, Judge
Jonathan Eric Swaite appeals from the final decree entered by the Garland County Circuit Court granting the petition of Tim and Carol Steele to adopt Jonathan's two minor children. On appeal, Jonathan argues that the circuit court clearly erred in finding that his consent was unnecessary for the adoption and that adoption was in the best interest of the children. We affirm.
Jonathan has two children: JS (born April 15, 2014) and DS (born March 6, 2015). Their mother is Kala Dawn Steele. Kala's father is Tim Steele, and Carol Steele is Kala's stepmother. In June 2015, Tim and Carol were granted guardianship of JS and DS due to Jonathan's and Kala's drug problems.
More than two years later, on August 14, 2017, Tim and Carol filed a petition to adopt JS and DS. The Steeles alleged that consent to adoption was not required from either Jonathan or Kala because they had failed to support or communicate with JS and DS for at least one year. The Steeles also alleged that adoption was in the children's best interest.
A hearing on the adoption petition was held on November 14, 2017. The Steeles testified that since June 2015, they had been the guardians of JS and DS and that neither Jonathan nor Kala had provided support for the children despite each having been ordered by the court to pay monthly child support of $65. The Steeles testified that neither parent had sent clothing, cards, gifts, or diapers since June 2015. The Steeles stated that Jonathan and Kala had used food stamps a few times to purchase groceries for their children around March 2016.
Carol testified that in 2015, Jonathan and Kala were awarded visitation twice a week and that they inconsistently exercised visitation until April 2016. Carol stated that since June 2016, Jonathan had not seen the children and had not called them. Tim stated that his and Carol's phone numbers had not changed in twenty years. Tim also testified that while he and Carol had moved in February 2017, the postal service forwarded their mail.
Carol further testified that she, Tim, and the boys live in a 3000-square-foot house that has three bedrooms, two and a half baths, and a pool in the backyard. She stated that the children are on Tim's medical insurance, that she takes them to the doctor, and that their immunizations are current. Lastly, Carol testified that she and Tim desired to adopt the children and that they fully understood the responsibility of adopting them.
Jonathan testified that around 2015 he and Kala had no place to live, had no jobs, and were addicted to drugs, so they asked the Steeles to care for JS and DS. Jonathan stated that he had been incarcerated for a drug-related offense for a few months, released for a couple of weeks, and reincarcerated for a year and a half. He was incarcerated at the time of the hearing. He stated that he expected to be released in eighteen days; he had a job in construction and a truck waiting for him upon his release; he planned to live with his mother; and drugs were no longer a problem for him.
Jonathan conceded that he had not paid child support as ordered but that he was willing to pay support and child-support arrearages. He stated that he was unable to exercise visitation with JS and DS because the Steeles would not permit it. He said that he was unable to have phone visitation with the children because he broke his phone and he lost the Steeles' numbers. He said that he never tried to send letters or cards to his children because he was told that the Steeles had moved, and he did not have their new address. Finally, Jonathan testified that he did not consent to the adoption and that he wanted to continue to be the children's father.
Kala testified that she and Jonathan had drug problems. She stated that she turned herself in to the authorities on June 1, 2017, and she was still in custody. She conceded that she had not paid support to the Steeles as ordered. She further stated that she had talked to the Steeles approximately three weeks before the hearing and that their phone numbers had not changed.
At the conclusion of the hearing, the circuit court orally granted the adoption. On November 20, 2017, the circuit court entered a decree of adoption finding
3. The [Steeles] proved, by clear and convincing evidence, that [Jonathan and Kala] failed significantly and without justifiable cause to provide for the care and support of the minor children as required by law or judicial decree for a period in excess of one year. Additionally, both [Jonathan and Kala's] contact with the minor children was very limited for a period in excess of one year. Although [Jonathan and Kala] did not consent to the adoption; their consent was not required due to the facts and evidence presented.
The court further found that the Steeles had been awarded guardianship of the children in June 2015, they had been in the Steeles' care since that time, and the Steeles were fit parents. Lastly, the court found that adoption was in the best interest of the children because the Steeles had cared for them for over two years, they were the only "true parents" the children had known, the Steeles had taken full responsibility for the children, they understood the meaning of adoption, and they had the means and desire to provide the care and support the children need. Jonathan filed a timely notice of appeal from the adoption decree.
We review adoption proceedings de novo on the record. Newkirk v. Hankins , 2016 Ark. App. 186, at 8, 486 S.W.3d 827, 832. Adoption statutes are strictly construed, and a person wishing to adopt a child without the consent of the parent must prove, by clear and convincing evidence, that consent is unnecessary. Id. , 486 S.W.3d at 832. A circuit court's finding that consent is unnecessary due to a failure to support or communicate with the child will not be reversed unless clearly erroneous. Id. , 486 S.W.3d at 832. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. , 486 S.W.3d at 832. In cases involving minor children, the circuit court must utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the children's best interest. Id. at 8-9, 486 S.W.3d at 832. Because the appellate court has no such opportunity, the superior position, ability, and opportunity of the circuit court to observe the parties are afforded their greatest weight in cases involving minor children. Id. at 9, 486 S.W.3d at 832-33.
As set forth above, the circuit court found that Jonathan's consent to the adoption of JS and DS was unnecessary. One reason is that it found that Jonathan had failed significantly and without justifiable cause to provide for the care and support of the children for a period in excess of one year. Jonathan argues that this finding is clearly erroneous because he provided "some support" when he was out of prison and was unable to provide support when he was in prison.
Pursuant to Arkansas Code Annotated section 9-9-207(a)(2) (Repl. 2015), a parent's consent to adoption is not required of
a parent of a child in the custody of another, if the parent for a period of at least one (1) year has failed significantly without justifiable cause (i) to communicate with the child or (ii) to provide for the care and support of the child as required by law or judicial decree.
"Failed significantly" certainly does not mean "failed totally." Childress v. Braden , 2017 Ark. App. 569, at 8, 532 S.W.3d 130, 135 (citations omitted). It means only that the failure must be significant, as contrasted with an insignificant failure. Id. , 532 S.W.3d at 135. It denotes a failure that is meaningful or important. Id. , 532 S.W.3d at 135.
Carol and Tim testified that Jonathan had not paid any child support for more than two years despite being ordered to do so as part of the June 2015 guardianship proceeding. Jonathan conceded this point at the hearing. This evidence supports the circuit court's finding that Jonathan's consent to adoption was unnecessary based on his failure to pay support for at least one year. Id. at 8-9, 532 S.W.3d at 134 (affirming the circuit court's finding that the appellant's consent to adoption was not necessary because the evidence showed that she did not pay court-ordered support for three years).
While Jonathan argues that he provided "some support," the only evidence of support was that on two or three occasions, he used food stamps to purchase food that he gave to the Steeles. This evidence does not constitute support of the children from June 2015 to August 2017 in any meaningful degree. Id. at 6-7, 532 S.W.3d at 134 (holding that gifts and clothing purchased by the appellant for her child from 2013 through 2015-totaling $200-did not constitute support of the child). Moreover, the last time Jonathan gave food to the Steeles was in March 2016, more than one year before the Steeles filed the petition to adopt the children.
Jonathan also argues that he could not pay child support because he was imprisoned during the case. In Gordon v. Draper , 2013 Ark. App. 352, at 7, 428 S.W.3d 543, 546, the circuit court found that the appellant's consent to adoption was unnecessary based on his failure to pay support for eighteen months despite being imprisoned for ten of those months. We affirmed, holding that the failure to pay support was unjustifiable. Id. , 428 S.W.3d at 546 ; see also In re Adoption of A.M.C. , 368 Ark. 369, 378, 246 S.W.3d 426, 432 (2007) (affirming circuit court's finding that consent to adoption was unnecessary based on his unjustifiable failure to pay support when the evidence showed that the appellant failed to pay child support for nineteen months and was incarcerated for twelve of those months); Courtney v. Ward , 2012 Ark. App. 148, at 15-16, 391 S.W.3d 686, 695 (affirming circuit court's finding that consent to adoption was unnecessary based on his unjustifiable failure to pay support when the evidence showed that the appellant failed to pay child support for two years and was incarcerated for fifteen months of that time). Similarly, Jonathan admittedly failed to pay child support to JS and DS for twenty-seven months. Although he was imprisoned for approximately twenty-one months during that time, there is no evidence in this record that he made or even attempted to make support payments in or out of prison.
Therefore, we affirm the circuit court's finding that Jonathan significantly and without justifiable cause failed to pay court-ordered child support for at least one year and, accordingly, that his consent to adoption was not necessary. Based on this holding, we need not discuss Jonathan's argument concerning his failure to communicate. Childress , 2017 Ark. App. 569, at 9, 532 S.W.3d at 136.
Jonathan's final argument is that the circuit court erred in finding that adoption was in the best interest of JS and DS. He contends that he has a loving relationship with JS and DS, he never abused or neglected them, and he had improved his life and his parenting skills while in prison.
A circuit court's decision regarding the best interest of a child to be adopted will not be reversed unless it is clearly against the preponderance of the evidence, giving due regard to the opportunity and superior position of the circuit court to judge the credibility of the witnesses. Id. at 9-10, 532 S.W.3d at 136. We give great weight to a circuit court's personal observations when the welfare of young children is involved. Id. at 10, 532 S.W.3d at 136.
In the case at bar, the Steeles have had custody of JS and DS since June 2015-when JS was one year old and DS was three months old. At the time of the adoption hearing, JS was three and a half, and DS was two and a half. These facts support the circuit court's finding that the Steeles had cared for the children for over two years and were the only "true parents" JS and DS have known. The guardianship was necessary because Jonathan was addicted to drugs and was unable to care for his children. He was incarcerated more than once for drug offenses and was incarcerated at the time of the adoption hearing. When Jonathan was not incarcerated, he did not have a stable job or a place to live. At no time did Jonathan pay child support for JS and DS despite being ordered to do so by the court in June 2015. He had not seen or talked to the children since June 2016, and there is no evidence that he attempted to see or communicate with the children since that time. This evidence supports the conclusion that Jonathan has not participated in the lives of JS and DS.
Further evidence demonstrates that the Steeles have safe and appropriate housing; the boys are on Tim's medical insurance; Carol takes the boys to the doctor when needed; the boys are up to date on their immunizations; the Steeles understand the responsibilities of adopting the boys; and most importantly, the Steeles have the ability, stability, and desire to continue to care for JS and DS. Based on this evidence, we hold that the circuit court did not clearly err in finding that it was in the best interest of JS and DS to grant the Steeles' adoption petition.
Affirmed.
Whiteaker and Murphy, JJ., agree.
Kala is not a party to this appeal. | [
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KENNETH S. HIXSON, Judge
Appellant Jason Douglas Hensley was convicted in a jury trial of kidnapping, rape, aggravated assault, and aggravated residential burglary. The victim was appellant's estranged wife, Melissa Hensley. For these offenses, Mr. Hensley was sentenced to thirty years in prison.
Mr. Hensley now appeals, raising two arguments for reversal. First, he argues that the trial court abused its discretion in allowing the hearsay testimony of Officer Melissa Smith regarding statements made to her by Mrs. Hensley at the hospital after the attack. Next, he argues that the trial court erred in denying his motion for directed verdict on the aggravated residential-burglary charge. We affirm.
On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Harris v. State , 2014 Ark. App. 264, 2014 WL 1758697. When an appellant challenges the sufficiency of the evidence on appeal, we address the sufficiency argument prior to a review of any alleged trial errors. Kennedy v. State , 49 Ark. App. 20, 894 S.W.2d 952 (1995). In reviewing a challenge to the sufficiency of the evidence, we determine whether the verdict was supported by substantial evidence, either direct or circumstantial. Armour v. State , 2016 Ark. App. 612, 509 S.W.3d 668. We review the evidence in the light most favorable to the State, considering only the evidence that supports the verdict. Id.
Mr. Hensley and Mrs. Hensley were a married couple going through a divorce. They had separated in November 2015. Before the separation, the parties had arranged to move with their children into a rental house in Conway. Mrs. Hensley and the children subsequently moved into that house, but Mr. Hensley never lived there because of the parties' separation. Mr. Hensley had instead moved into a friend's house in Benton. According to Mrs. Hensley, Mr. Hensley did not have a key to her house, and she had unsuccessfully tried to take his name off the lease. In addition, as a result of charges unrelated to this case, there was a no-contact order entered in November 2015 prohibiting Mr. Hensley from having any contact with one of Mrs. Hensley's children or any of the child's immediate family.
On the morning of February 22, 2016, Mrs. Hensley was home in her bed and her children were at school. The police received an emergency call about a disturbance at the house. Officer Matthew Hugen was one of the officers who arrived to investigate.
When Officer Hugen arrived at the house, Mrs. Hensley was standing outside. Officer Hugen testified that Mrs. Hensley had blood on her clothing and was wearing a handcuff on one of her ankles. She was upset and her voice was fast, shaky, and trembling. According to Officer Hugen, the first thing Mrs. Hensley said to him was that Mr. Hensley had come into the house and tried to attack her with a knife and that she tried to defend herself with a coffee mug.
The police entered the house and found Mr. Hensley in Mrs. Hensley's bedroom lying unconscious on her bed with his pants down around his ankles. There were deep cuts on both of Mr. Hensley's wrists, and the sheets were covered in blood. Upon inspecting the bedroom, the police found a knife, a box cutter, and a still-lubricated condom that appeared to have been recently removed from a torn wrapper. The police also found broken pieces of two coffee mugs. In Mrs. Hensley's kitchen was a knife block with one knife missing. Mr. Hensley had driven his roommate's vehicle and parked a block away before entering the house.
Officer Melissa Smith testified that she made contact with Mrs. Hensley after Mrs. Hensley had been transported by ambulance to the hospital. Officer Smith described Mrs. Hensley as very upset, emotional, and sobbing. Mrs. Hensley had blood on her clothes, hands, arms, and hair, as well as a bruised and swollen cheekbone. As part of her duties, Officer Smith interviewed Mrs. Hensley at the hospital. Mr. Hensley objected to Officer Smith testifying about what Mrs. Hensley had told her in the interview, arguing that this was inadmissible hearsay. The trial court overruled the objection, ruling that her testimony was admissible under the excited-utterance exception to the hearsay rule.
Officer Smith testified:
I did not know this woman [Mrs. Hensley], so I was trying to get the entire story from her. She told me that she and her husband were separated and were in the process of divorce.
She said that they had been separated for a year, and that they really hadn't spoken a whole lot since then but suddenly he started sending her a bunch of text messages, repeating things like he loved her and could not live without her. She said she didn't really respond to him, but the night before the incident he sent her a message saying that he really needed to talk to her, that it was important and that it affected him and the children.
She said she thought that was a very odd statement, so she saved that message but did not reply to it. So she got up that morning, took all the kids and....
She told me that she had been talking on the phone. As soon as she hung up, her husband was at her bedroom door. She had not heard him come in. He was just suddenly there, and he was holding a knife up above his shoulder and he screamed what she described as wildly at her and ran at her and started trying to stab her with the knife.
She said they got in a struggle and she was able to knock the knife away from him, and so he put his hands around her throat and started trying to strangle her. She said she could not breathe at this point and felt like she was going to pass out. She said she was reaching around for anything that she could find to defend herself and she found a coffee mug and smashed it on his head, and that distracted him long enough for her to try and get away.
He caught her before she got out of the bedroom and slammed her against the wall, then he pulled a box knife from his pocket and slit his wrists.
She said they kept struggling and she tried to dart into the bathroom to get away and he followed her in and ended up getting her into the bathtub. Whenever she tried to get away from him, he would smash her head into the bathtub.
The whole time she was telling me this, she is going from being able to talk to almost reliving it and starting to bawl. So, we would have to try and calm her down so she could talk again and explain it and then she would just get into the moment again and start crying. But she was able to relay it to us over time.
She said that he was bleeding really badly because he had slit his wrists and also because of the damage she caused by smashing the coffee mug on his head. At one point she thought "I'll just kind of trick him and say, oh, it's okay, it's okay." Then she started blotting his head with a towel trying to calm him down. After she thought that she had distracted him long enough she tried to run again, but he charged her again and tackled her on the bed.
She said that he had a set of leg shackles. She didn't know where they came from, but he shackled her right leg to her right wrist and he had her on the bed....
He then pulled her pants down. He has her shackled on her wrists and ankle. Pulled her pants down and stuck two fingers into her rectum. That's how she described it.
She said that he tried to have sex with her. She said he was having a difficult time achieving an erection, so he was kind of smushing his penis up against her vagina.
She has five kids, so she told him "If you're going to do this, let's be smart about it. I at least need you to wear a condom." So she told him where the condoms were, and he put it on his penis and began trying to have sex with her.
At that point she said that she felt he was getting tired. She could feel his body weight on her getting really heavy. She knew that he was about to pass out because his eyes were getting glassy, and he was just getting sleepy on her. So, she told him to "Just calm down, just rest, just rest. It's okay." She waited for him to pass out and then ran out of the house.
She mentioned that when he put the shackle on her wrist they were fighting so she kept her hand wide to keep it from getting real tight, so she was able to get that part off of right while she was running and was able to get out of the house.
Tyler Henderson, a friend of Mrs. Hensley, had driven up to Mrs. Hensley's house in the aftermath of the incident. Mr. Henderson testified that he saw Mrs. Hensley exit the front of the house wearing pajamas and no shoes and noticed blood on Mrs. Hensley's clothing and hair. According to Mr. Henderson, Mrs. Hensley was panicked and yelling, but he could not understand anything Mrs. Hensley was saying. When the first responders arrived and tried to examine Mrs. Hensley, she recoiled and screamed and would not let them examine her.
Mrs. Hensley testified in detail about the events that occurred that morning. She stated that her doors were locked and that she was lying in bed when Mr. Hensley entered her bedroom. Mrs. Hensley testified:
He appeared in the doorway of my bedroom with a kitchen knife and I started screaming. I was yelling at him to get, to leave, that he was not welcome and to go away.
He was yelling at me, I couldn't understand all of it, but he was yelling and saying he was there to kill me and kill himself.
I was already under the covers in the bed, and he jumped on me with the knife and held it to my throat. I grabbed it by the handle and as I pulled it away from my face it hit my arm, I still have a scar from it, and it hit the back of the headboard and fell behind the bed.
He then started choking me with his hands around my throat. I don't recall him saying anything while he was choking me....
At some point I grabbed a coffee cup. While he was choking me, I grabbed a coffee cup and hit him over the head with it. I kept just grabbing things to hit him over the head, hoping to knock him out.
After I got out of the choke hold I maneuvered my legs out from underneath him and the covers so that I could get out - get off the bed and out from underneath so I wouldn't be pinned down.
As I did that he grabbed me by the hair and slammed me up against the wall. The next thing I knew he pulled out a pair of handcuffs and was beating me over the head with them, and I was on the ground holding my hands over my head.
He was yelling and telling me to stop screaming - that if I stopped he would stop hurting me. So, I told him "Okay, okay, just please stop. Please stop hurting me. Why are you even here?"
Then he pulled a box cutter out of his pocket. I didn't know what he was going to do with it, but he started cutting his wrists, both of them, very deeply. Blood was going everywhere.
I thought I was going to die. I kept telling myself to keep fighting. I yelled at him and told him that if he was going to be selfish enough to cut his wrists and bleed everywhere he could at least do it in the bathroom and bleed in the bathroom, so I didn't have to clean up his mess.
That's when he grabbed my hair again and shoved me into the bathroom and tried to shackle me. I kept asking him not to do this, not to leave me in there like that. He told me that as long as I stayed in the bathroom he would not shackle me to the bathtub and then he walked out and closed the door.
I was just trying to figure out how to get out of there. I kept trying to leave the bathroom and he kept pushing me back and threatening to beat me, or cut me, or kill me.
Then he shut the door and I could hear him rummaging around the bedroom, looking for his cell phone. Then he came back into the bathroom with two bottles of medicine that were prescribed to me. One was an almost full bottle of Ambien and the other was an almost full bottle of Klonopin. I had only taken a few of those and they were on my dresser. He dumped them all into some container and then took all of them and drank some water.
I was sitting in the bathtub during all of this, just trying to keep my distance.
He was still bleeding, and he told me to just stay right there. Then I thought, "okay, I'm a nurse. He's bleeding out. He's taken a bunch of pills. At some point he is going to get tired from the blood loss and medication and he will lose his strength and his ability to keep going."
He then came back into the bathroom with a package of condoms and asked me why I needed those. And I said, "well why would anybody need condoms?" He said "Fine. If you want to f* * * other men, then I'm going to take you in here and I'm going to f* * * you too."
He grabbed me by the hair and took me into the bedroom and we were physically fighting because I was trying to get him off of me. I'm hitting him, punching and scratching him. I grabbed the other two coffee cups and beat him over the head with those as well. I just thought that if I was going to die and if he was going to rape me then I wanted his DNA under my fingernails, so someone could find out who did this to me.
He then pulled out the cuffs he had, and we fought over that because he was trying to put both my hands behind my back and had me face-down in the bed. I was trying to roll around and just keep moving. I thought if I kept moving he wouldn't be able to get the cuffs on me, but he managed to get one on my right ankle and the other on my right hand.
He pulled his pants down and then pulled mine down and I was begging him not to do this. He put his fingers into my vagina and in my anus and I told him that if he was going to rape me to use a condom because I already have five children and don't want anymore.
He grabbed a condom and tried to put it on. He tried to rape me with his penis, but he wasn't able to maintain a full erection.
I realized he was getting tired, and that the meds he took may have started kicking in, or the blood loss may have affected him enough that he was losing strength and his ability to stay awake. I asked him if he was tired and told him that it was okay if he was tired - that he could just lay down. He said that he was tired, and I had to roll him off of me.
I was standing there, scared that he was going to get back up again and start hurting me. When I realized he was out, I pulled up my pants and started running out the door.
I saw my friend Tyler when I ran out the door. He was really shocked. Honestly, I didn't expect him to show up right then. I was going to run across the street to the neighbors to call the police, but Tyler got me in the car and I was "just go, get me out of here" because I was terrified he would come back outside the house. Eventually the fire department and police arrived.
Mr. Hensley testified in his own defense. He stated that on the morning of the events he had decided to kill himself and needed to see Mrs. Hensley once more before he took his life. He stated that he drove his roommate's vehicle to her house because his car had a broken headlight and he did not want to get pulled over and get a ticket. Mr. Hensley claimed that he entered Mrs. Hensley's house through an unlocked door and went to her bedroom, at which point she became hysterical and started throwing coffee cups at him and screaming for him to leave. Mr. Hensley testified that Mrs. Hensley grabbed a knife from her nightstand and swung the knife at him, and that he was able to wrestle the knife away from her. He stated that during the struggle he noticed a pair of handcuffs on the bed and used them to shackle Mrs. Hensley's right wrist and right ankle to keep her from swinging at him. According to Mr. Hensley, he then told Mrs. Hensley that he had no life, produced a box cutter from his pocket, and slit his wrists. Then he took a bunch of pills. At this point, according to Mr. Hensley, Mrs. Hensley hugged and kissed him and asked if he wanted to have sex. He then pulled out a condom and tried to have sex but could not get an erection. Soon thereafter, he started feeling sick and passed out.
The State presented one rebuttal witness. Officer Jeremy Holliman testified that he had interviewed Mr. Hensley about these events and that Mr. Hensley agreed to give a statement. According to Officer Holliman, Mr. Hensley told him that he went to Mrs. Hensley's house because he needed to talk with her. Mr. Hensley told Officer Holliman that when he entered the house "it went horribly," and Mrs. Hensley threw coffee mugs at him and screamed for him to leave. Mr. Hensley told Officer Holliman that the right thing to do would have been to leave, but that he remained there and "coerced her into the bathtub so he could get out of the situation." Mr. Hensley said that the handcuffs belonged to Mrs. Hensley's boyfriend and that he put them on her to make her listen to him. Mr. Hensley never mentioned anything about Mrs. Hensley hugging or kissing him, and when asked whether they had sex he replied, "absolutely not."
We first address Mr. Hensley's argument on appeal that the trial court erred in denying his motion for directed verdict on the aggravated residential-burglary charge. Arkansas Code Annotated section 5-39-204 (Repl. 2013) provides:
(a) A person commits aggravated residential burglary if he or she commits residential burglary as defined in § 5-39-201 of a residential occupiable structure occupied by any person, and he or she:
(1) Is armed with a deadly weapon or represents by word or conduct that he or she is armed with a deadly weapon; or
(2) Inflicts or attempts to inflict death or serious physical injury upon another person.
Arkansas Code Annotated section 5-39-201(a)(1) provides that a person commits residential burglary if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing in the residential occupiable structure any offense punishable by imprisonment.
Mr. Hensley contends that there was insufficient evidence to support his aggravated residential-burglary conviction because his name was on the lease of the house that he entered. Arguing that he had the right to use and possession of the property, he asserts that the State failed to prove that he entered or remained unlawfully in the residence of another person as required by the statute.
We are unable to reach the merits of Mr. Hensley's sufficiency argument because it is not preserved for appeal. Although Mr. Hensley made directed-verdict motions at the close of the State's evidence and at the close of his case, he failed to renew his directed-verdict motion after the State called Officer Holliman as a rebuttal witness. Rule 33.1(a) of the Arkansas Rules of Criminal Procedure provides that, in a jury trial, a motion for directed verdict shall be made at the close of all the evidence. The failure to challenge the sufficiency of the evidence at the times and in the manner required constitutes a waiver of a sufficiency-of-the-evidence argument on appeal. Ark. R. Crim. P. 33.1(c). Failure to renew a motion for directed verdict after the close of the State's rebuttal testimony waives the issue of sufficiency of the evidence on appeal. Garza v. State , 2018 Ark. App. 422, 558 S.W.3d 404. A renewal is more than a matter of mere form; it goes to the substance of the evidence against a criminal defendant. Id. Because Mr. Hensley failed to renew his motion for directed verdict at the close of the State's rebuttal testimony, he has waived any challenge to the sufficiency of the evidence on appellate review.
Mr. Hensley's remaining argument is that the trial court erred in permitting the hearsay testimony of Officer Smith regarding the statements made by Mrs. Hensley at the hospital. The trial court permitted this testimony based on the excited-utterance exception to the hearsay rule. Arkansas Rule of Evidence 803(2) provides that an excited utterance is not excluded by the hearsay rule, even though the declarant is available as a witness, and that an excited utterance is a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. Mr. Hensley maintains that at the time Mrs. Hensley made these statements she had been removed to the hospital and was no longer under the stress of excitement caused by the events, and that this exception was not applicable.
We discussed the excited-utterance exception in Jones v. Currens , 104 Ark. App. 187, 192, 289 S.W.3d 506, 510-11 (2008):
The theory of the excited-utterance exception is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. In ruling on this exception, the circuit court should consider all the relevant circumstances: the lapse of time between the events and the statement; the declarant's age, mental condition, and physical condition; the characteristics of the event; and the statement's subject matter. The record must show that the declarant's condition at the time was such that the statement was spontaneous, excited, or impulsive rather than the product of reflection and deliberation.
The statement need not be contemporaneous with the provoking event. But the statement must be close enough in time that it may reasonably be considered a product of the stress of the accident, rather than of intervening reflection or deliberation. The trend in the law is toward relaxing the time element. Nonetheless, an excited utterance must have been made before there was time to contrive and misrepresent; that is, it must have been made before reflective and deliberative senses took over.
(internal citations omitted).
The decision to admit or exclude evidence is within the sound discretion of the trial court, and this court will not reverse a trial court's decision regarding the admission of evidence absent a manifest abuse of discretion. Jones v. State , 2011 Ark. App. 324, 384 S.W.3d 22. An abuse of discretion is a high threshold that does not simply require error in the trial court's decision, but requires that the trial court acted improvidently, thoughtlessly, or without due consideration. Id. Moreover, an appellate court will not reverse a trial court's evidentiary ruling absent a showing of prejudice. Id.
The statements made by Mrs. Hensley to Officer Smith about the events that occurred that morning were clearly hearsay, and we conclude under these circumstances that the trial court abused its discretion in applying the excited-utterance exception. In this case, Mrs. Hensley's statements at the hospital were made after she had already spoken about the crime to another officer at the crime scene. Though not dispositive, there was a time lapse between the startling events and the time Mrs. Hensley spoke with Officer Smith. Moreover, Mrs. Hensley's statements were not spontaneous; rather, they were in response to questions in an interview by the officer. And the statement itself was quite lengthy and could better be described as a narrative than an utterance. We hold that the trial court abused its discretion in admitting this testimony.
This, however, does not end our analysis because evidentiary rulings are subject to a harmless-error analysis. Our supreme court has held that even when an appellant has demonstrated error, when the evidence of guilt is overwhelming and the error is slight, we can declare the error harmless and affirm. Bledsoe v. State , 344 Ark. 86, 39 S.W.3d 760 (2001). Our supreme court has also held that prejudice is not presumed and that no prejudice results when the evidence erroneously admitted was merely cumulative. Wright v. State , 368 Ark. 629, 249 S.W.3d 133 (2007).
We hold that Mr. Hensley has failed to show that the trial court's error resulted in prejudice. Officer Smith's testimony was cumulative to the testimony of Mrs. Hensley, who testified in great detail about the offenses committed against her by Mr. Hensley that morning. Officer Smith's testimony was also consistent with the testimony of Officer Hugen, who testified that shortly after the events occurred, Mrs. Hensley, while in a condition of excitement, told him that appellant had attacked her with a knife and that she tried to fight him off with coffee mugs. In addition, there was other evidence corroborative of Mr. Hensley's guilt. There was evidence that Mr. Hensley exercised unauthorized control of his roommate's vehicle and handcuffs, that he parked a block away from Mrs. Hensley's house, which was locked at the time, and that he entered the house. Sometime later, Mrs. Hensley emerged from the house in bare feet and pajamas, with blood on her hair and clothes, in a state of panic. A handcuff remained attached to her ankle, undisputedly put there by Mr. Hensley. Mrs. Hensley was transported to the hospital by ambulance for treatment of her injuries. Mr. Hensley was found unconscious on Mrs. Hensley's bed with his pants down and a condom nearby. Considering Mrs. Hensley's testimony and the remaining evidence demonstrating Mr. Hensley's guilt, we hold that the error in admitting Mrs. Hensley's statement to Officer Smith was harmless.
Affirmed.
Klappenbach and Whiteaker, JJ., agree.
Mr. Hensley made a hearsay objection to these statements by Officer Hugen, but the trial court ruled them admissible under the excited-utterance exception. This evidentiary ruling is not at issue on appeal.
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RAYMOND R. ABRAMSON, Judge
Appellants Connie and Richard Watkins bring this appeal, which stems from a long-standing dispute regarding Paragould Light & Water Commission's (PLWC) tree trimming around their property. During the dispute, PLWC engaged licensed land surveyor Bradley P. Hancock and his business Bradley P. Hancock Surveying and Mapping (collectively "Hancock") to perform a land survey. Hancock's survey located certain trees that appellants understood to be on their property as being beyond its boundaries. Appellants believe Hancock's survey was maliciously and fraudulently performed and filed two complaints against Hancock-one in 2007 and one in 2014-with the Arkansas State Board of Licensure for Professional Engineers and Professional Surveyors (ASBL). The ASBL dismissed both complaints.
In this lawsuit, appellants, who are proceeding pro se, sued based on the handling of their complaints against Hancock and allege that each of the parties sued engaged in a conspiracy to conceal fraud perpetrated by Hancock. Appellants have sued Hancock, several state agencies, three employees of those agencies, four members of a state board, and the state attorney who advised the agencies. Those who were sued responded to the complaint with motions to dismiss on several grounds. The circuit court granted the motions to dismiss. Appellants appeal and raise several arguments in support of reversal. We hold that there is no merit to appellants' arguments and affirm the circuit court's order dismissing their complaint.
I. Background and Procedural History
Nearly twenty years ago, appellants and PLWC first clashed regarding the method in which PLWC was trimming trees on appellants' property during its power-line maintenance. The dispute escalated in 2006. It was then that PLWC commissioned Hancock to perform a land survey that included appellants' property. The Hancock survey, unlike previous surveys, determined that certain trees adjacent to the southern fence of appellants' property were beyond the southern bounds of their property. Appellants challenged the validity of the Hancock survey from the outset, claiming Hancock was prejudiced against them and that he made the deliberate choice to satisfy a known government adversary of theirs when he performed his survey.
In November 2006, PLWC came to the area to trim trees that the Hancock survey identified as being outside appellants' boundary line. An altercation followed, and Mrs. Watkins was ultimately arrested and charged with disorderly conduct. She was later convicted of disorderly conduct in the Greene County Circuit Court. Mrs. Watkins appealed her conviction to our court, and we affirmed. See Watkins v. State , 2010 Ark. App. 85, 377 S.W.3d 286.
After the confrontation, PLWC filed a petition in the Greene County Circuit Court seeking to enjoin appellants from interfering with or harassing its workers during their maintenance of power lines. In its petition, PLWC stated that it owned or had acquired a prescriptive easement over the appellants' property for the purpose of maintaining power lines. Appellants responded with a voluminous counterclaim against PLWC, which included causes of action for breach of contract, intentional torts, and civil-rights violations. Ultimately, the circuit court granted PLWC's request for an injunction, found that PLWC was entitled to a right-of-way easement by prescription, and denied all relief requested by appellants. On appeal, our court affirmed the circuit court's decision. Watkins v. Paragould Light & Water Comm'n , 2016 Ark. App. 432, 504 S.W.3d 606.
In February 2007, appellants filed a complaint against Hancock with the ASBL, seeking to have Hancock sanctioned for his actions with regard to the survey. The ASBL dismissed this complaint against Hancock. Appellants call the ASBL's refusal to sanction Hancock "contrary to all evidence" and claim that the ASBL's findings were "lies" and that the dismissal of their complaint was "baseless, of bad faith, and false." Essentially, they claim that the dismissal of their complaint was the result of a conspiracy against them.
In February 2014, appellants filed a second complaint with the ASBL against Hancock. In this complaint, they alleged that they had learned of fraud committed in connection with Hancock's survey. The ASBL ultimately dismissed the 2014 complaint.
After the ASBL refused to sanction Hancock in 2014, appellants filed this lawsuit on August 28, 2015, in the Pulaski County Circuit Court. They sued Hancock, three state agencies-the ASBL, the Arkansas Department of Agriculture, and the Arkansas Division of Land Surveys. They also sued three state-agency employees-Everett Rowland, James Atchley, and Steve Haralson; four members of the ASBL-Ronald Hawkins, Nora Moses, James Engstrom, and Robert Holloway; and the state attorney who advised the agencies-Brandon Robinson-in their individual capacities. Rowland, Atchley, Haralson, Hawkins, Moses, Engstrom, Holloway, and Robinson are often referred to as the individual capacity defendants (ICDs).
Appellants' complaint spans 191 pages, includes 195 pages of exhibits, and raises twenty-eight causes of action including fraud, defamation, violations of criminal statutes, violations of administrative statutes, and § 1983 actions. The complaint is lengthy, chaotic, inartfully written, and at times, practically unintelligible. It is replete with speculative and conclusory allegations. But the essence of the complaint is that each of these parties colluded to conceal fraudulent actions taken by Hancock. By way of example, appellants frequently reference Hancock's "fraudulent survey" and PLWC's "malicious plan." They also allege the ASBL "created malicious falsified record " to "minimize and conceal the overwhelming clear evidence against Hancock and Hancock's clear misconduct and fraud, advance the interests of PLWC AND to incriminate, with defamation Connie Watkins ." (Emphasis in original.)
In September 2015, the Arkansas Attorney General filed a motion to dismiss on behalf of the state agencies, the employees of those agencies, the state board members, and the attorney advising those agencies. In the motion, several defenses were raised including that appellants' claims were barred by the applicable statutes of limitation, that appellants failed to state a claim for relief, and that these parties were immune from suit. Similarly, Hancock filed a motion to dismiss for reasons including the failure to state a claim for relief.
The circuit court held a hearing on March 22, 2016. To appellants' extreme dissatisfaction, the circuit court announced from the bench its rulings on all pending motions without allowing argument. The circuit court granted Hancock's motion to dismiss. The circuit court also granted the motion to dismiss filed by the Attorney General, finding that appellants' claims were barred by the applicable statutes of limitation and that their complaint failed to state a claim for which relief could be granted. An order dismissing appellants' complaint with prejudice was entered on April 29, 2016.
Appellants filed numerous posttrial motions with the circuit court. Posttrial motions relevant to this appeal begin with the appellants' April 1, 2016 filing of a motion to recuse, which the circuit court denied. Appellants also filed two Rule 60 motions to vacate on May 13, 2016. The Rule 60 motions requested that the circuit court vacate the April 2016 dismissal order and again asked the circuit court to recuse. These motions were deemed denied on June 12, 2016, and the circuit court entered an order denying the motions on June 20, 2016. Appellants filed a timely notice of appeal on July 12, 2016, appealing several orders, including the deemed denial of the Rule 60 motions, the June 20 orders denying those motions, the April 2016 order of dismissal, and the May 2016 order denying the motion to recuse.
Appellants continued to file pleadings with the circuit court. Importantly, in October 2016, appellants filed a motion and affidavit of newly discovered facts relating to what they believed were unauthorized costs being assessed by the Pulaski County Circuit Clerk. They also filed a Rule 60 motion alleging a prejudicial clerk note. The circuit court never ruled on these motions.
In this appeal, appellants make numerous arguments seeking to reverse the circuit court's dismissal order. From the outset, it is clear that we are procedurally barred from addressing several of these arguments. We also note that this appeal poses some unique challenges. Appellants' arguments are often practically incomprehensible because they are poorly developed and citations to relevant authority are rare. The burden is on appellants to demonstrate error and to bring up a record that so demonstrates. RAD-Razorback Ltd. P'ship v. B. G. Coney Co. , 289 Ark. 550, 713 S.W.2d 462 (1986). Our court will not make appellants' argument for them or consider an argument that is not properly developed. Teris, LLC v. Chandler , 375 Ark. 70, 289 S.W.3d 63 (2008). Thus, in instances where appellants' argument is unclear, we do not address it.
The fact that appellants have chosen to represent themselves does not allow us to give special consideration to their case. Appellants' right to represent themselves carries with it concomitant responsibilities, and pro se appellants receive no special consideration of their argument and are held to the same standard as licensed attorneys. Elder v. Mark Ford & Assoc. , 103 Ark. App. 302, 304, 288 S.W.3d 702, 704 (2008).
II. Dismissal of the Fraud and Defamation Claims and the ICDs
In appellants' first point on appeal, they seem to be making three arguments in support of reversal. Those arguments are that (1) the absence of written findings by the circuit court requires reversal, (2) it was error to dismiss their fraud and defamation claims, and (3) it was error to dismiss the claims against the defendants sued in their individual capacities.
Our court reviews a circuit court's order granting a motion to dismiss using a de novo standard of review. Jackson v. Nationstar Mortgage, LLC , 2016 Ark. App. 473, 505 S.W.3d 713. In our review, we treat the facts alleged in the complaint as true and view them in the light most favorable to the appellant. See Davenport v. Lee , supra ; Goff v. Harold Ives Trucking Co. , 342 Ark. 143, 27 S.W.3d 387 (2000).
A. The Absence of Written Findings
We begin by summarily disposing of appellants' argument that the circuit court "erred in not making determinations required by law on [their] 28 causes of action." Our rules of civil procedure do not mandate that written findings of fact or conclusions of law be issued when decisions are made on motions. See Ark. R. Civ. P. 52(a). In fact, the circuit court was not even required to hold a hearing before ruling on these pending motions. We affirm on this point.
B. The Dismissal of the Fraud Claims
Next, appellants argue that the circuit court erred by dismissing their causes of action for fraud. Appellants asserted two fraud claims-Claims IV and VI-in their complaint. Claim IV was against Hancock, and they allege Hancock colluded with PLWC and the local prosecuting attorney by preparing a fraudulent survey of their land in 2006, which resulted in Connie Watkins's conviction for disorderly conduct. Claim VI was against Everett Rowland, a state land surveyor. In Claim VI, appellants allege that from 2007 to 2011, Rowland concealed his involvement in their "oppression," aided Hancock, and influenced the ASBL all while telling appellants that their interests were safe and being considered.
A successful claim for fraud involves (1) a false representation of a material fact; (2) knowledge that the representation is false or that there is insufficient evidence on which to make the representation; (3) intent to induce action or inaction in reliance on the representation; (4) justifiable reliance on the representation; and (5) damage suffered as a result of the reliance. Lane v. Rachel , 239 Ark. 400, 389 S.W.2d 621 (1965).
Arkansas Rule of Civil Procedure 9 requires that in claiming relief based on fraud, "the circumstances constituting fraud ... shall be stated with particularity." Moreover, our caselaw provides that fraud must be specifically alleged, and a complaint must state something more than mere conclusions and must clearly set forth the facts relied on as constituting fraud. Woodend v. Southland Racing Corp. , 337 Ark. 380, 989 S.W.2d 505 (1999).
The statute of limitations for fraud is three years. Ark. Code Ann. § 16-56-105 (Repl. 2005). Importantly, the alleged wrongdoing in this case occurred more than three years before August 2015 when the lawsuit was filed. The limitations period begins to run when the wrong occurs unless the wrong has been concealed. Hampton v. Taylor , 318 Ark. 771, 887 S.W.2d 535 (1994). In instances of concealment, the statute of limitations is suspended until the party having the cause of action discovered or should have discovered the fraud. SEECO v. Hales , 341 Ark. 673, 22 S.W.3d 157 (2000).
Appellants contend that their claims were not barred by the three-year statute of limitations because there was fraudulent concealment. It is appellants' burden to demonstrate error and bring up a record that so demonstrates, so we rely on their brief for guidance. See RAD-Razorback Ltd. P'ship, supra. Their concealment argument can be summarized as follows: the ASBL maliciously created internal documents that falsified the record to protect Hancock from retribution. These internal documents were created in 2009, but appellants did not learn of them until 2014 when they received them pursuant to a FOIA request. The documents provide a synopsis of appellants' complaint, background information, and the evidence involved. With this introductory information, we turn our attention to the claims themselves.
First, we discuss Claim IV against Hancock wherein appellants allege Hancock colluded with PLWC and the local prosecuting attorney by preparing a fraudulent survey of their land. Appellants claim that the documents discovered in 2014 indicate that Hancock participated in a fraud against them and concealed his participation, thus tolling the statute of limitations. Appellants fail to offer facts as required by Arkansas Rule of Civil Procedure 9 to substantiate their theory that the documents discovered in 2014 implicate Hancock's involvement in a fraud-nor do they bring to light any information regarding Hancock's involvement in their dispute that they did not know about years before 2014. Moreover, appellants do not allege how they relied on Hancock's survey-in fact, this litigation makes clear that they have always refuted Hancock's survey. Accordingly, Claim IV was properly dismissed by the circuit court.
Next, we address Claim VI against Rowland. The allegation seems to be that Rowland insinuated that he was helping appellants when, in fact, he was working against them. The documents uncovered by a FOIA request are insufficient to support an allegation that Rowland engaged in fraud. Irrespective of this, appellants also fail to allege how they relied on any false representation made by Rowland. For these reasons, Claim VI was also properly dismissed.
C. The Dismissal of the Defamation Claim
Now, we turn our attention to appellants' defamation claim. In Claim VIII of their complaint, appellants contend that appellees Atchley and Haralson, employees of the ASBL, defamed Mrs. Watkins. The alleged defamatory statement was written in internal ASBL documents created as a result of appellants' complaint against Hancock. The documents included the statement that Connie had been "convicted of a number of offenses" when in fact she had been convicted of only one criminal offense-disorderly conduct.
The following elements must be proved to support a claim of defamation: (1) the defamatory nature of the statement of fact; (2) the statement's identification of or reference to the plaintiff; (3) publication of the statement by the defendant; (4) the defendant's fault in the publication; (5) the statement's falsity; and (6) damages. Faulkner v. Ark. Children's Hosp. , 347 Ark. 941, 69 S.W.3d 393 (2002).
Here, the defamation claim was properly dismissed because of the absence of facts in the complaint to allege any publication of a purported defamatory statement. In defamation cases, the libelous statement must be published or communicated to a third person to be actionable. Farris v. Tvedten , 274 Ark. 185, 623 S.W.2d 205 (1981). In this instance, the alleged defamatory statements were written by ASBL employees and received by other members of the ASBL. Thus, any dissemination of this information was within a single entity, and no third party was involved. See Roeben v. BG Excelsior Ltd. P'ship , 2009 Ark. App. 646, 344 S.W.3d 93. We affirm the circuit court on this point.
D. The Dismissal of the Claims Against the ICDs
Appellants argue that the circuit court erred by dismissing their claims against the ICDs.
The first argument seems to be a reiteration that the circuit court erred by not specifically naming any of the claims when ruling. We have previously addressed and disposed of this argument. Although this is true, this is not error. See Ark. R. Civ. P. 52(a).
Appellants also complain about the dismissal of several due-process claims based on 42 U.S.C. § 1983. These claims can be characterized as allegations that they were mistreated and denied due process during the investigation of their 2014 complaint against Hancock. To establish a violation of § 1983, a plaintiff must show that the deprivation (1) was a right secured by the United States Constitution and the laws of the United States and (2) was caused by a person or persons acting under the color of state law. Repking v. Lokey , 2010 Ark. 356, 377 S.W.3d 211.
In support of reversal, appellants primarily make speculative and conclusory allegations. They allege a "predetermined shut-down of constitutional rights, with a game plan unknown to Watkins." Appellants further claim that Mrs. Watkins was "harassed ... in malicious sport, with fraud, and prevented due process," "prejudiced ... by slander," "illegally instructed," and "bullied;" and that the ICDs "executed a scripted chilling of Connie Watkins' 1st Amendment speech." They also allege the ASBL employees "furtively acted to deny notice to Watkins' of Hancock's attorney's name, and of the damaging March exparte discussion" between Hancock and the ASBL employees.
It is appellants' burden to demonstrate error on appeal. See RAD-Razorback Ltd. P'ship, supra. After reviewing the complaint and the arguments, we are not persuaded that any of the conduct alleged by appellants amounts to a deprivation of their rights. Therefore, we hold that the circuit court did not err by dismissing these claims and affirm on this point.
III. The Prejudicial Clerk Note
In this point on appeal, appellants attack a clerk note entered on the docket of this case. The clerk note, written on October 19, 2015, stated:
This case was "cleaned" up per request from 6th division. It was filed on August 28th, but the case was entered with some documents out of order or missing on original filing.
Appellants first raised an argument regarding the clerk note in a Rule 60 motion filed on October 10, 2016-nearly six months after the circuit court had entered its dismissal order and after the notice of appeal had been filed. Appellants argued that the circuit court's dismissal order must be set aside because this clerk note amounted to a misprision of the clerk. See Ark. R. Civ. P. 60(c)(3). Appellants claim a deputy clerk entered the note with "known false implication" and that the note indicated "an opinion held and expressed by the court." Essentially, appellants contend that the clerk note indicates a fraud perpetrated against them and the circuit court's predisposition to rule in favor of their adversaries.
We do not reach the merits of this argument because the circuit court never ruled on this motion, and it is an appellant's responsibility to obtain a ruling to preserve an issue for appeal. Meador v. Total Compliance Consultants, Inc. , 2013 Ark. 22, 425 S.W.3d 718.
IV. The Hancock Dismissal
Appellants also seek reversal of the circuit court's order dismissing their claims against Hancock. The only coherent argument we can ascertain on this point is that appellants believe their claims against Hancock were improperly dismissed due to a clerk's error. In support, appellants highlight the language used in Hancock's motion to dismiss, stating that appellants' complaint was "171 pages and 476 paragraphs ... however, no specific cause of action is asserted." In fact, appellants' complaint was 191 pages and 572 paragraphs, and pages 172 through 191 of the complaint included the causes of action against Hancock.
We reject the argument that Hancock's dismissal must necessarily be reversed because his motion to dismiss mentioned the wrong number of pages and paragraphs. In the motion to dismiss, Hancock also sought relief based on appellants' failure to state facts on which relief can be granted. Moreover, the circuit court acknowledged on the record that it had read and considered all pleadings filed by the parties. Appellants have demonstrated no reversible error in conjunction with Hancock's dismissal, and we affirm on this point.
V. The Attorney General's Representation of the ICDs
Among those sued by appellants were three state-agency employees-Everett Rowland, James Atchley, and Steve Haralson; four members of the ASBL-Ronald Hawkins, Nora Moses, James Engstrom, and Robert Holloway; and the state attorney who advised the agencies-Brandon Robinson. Each was sued in his or her individual capacity, and the Attorney General represented each of these ICDs in this litigation.
Throughout the litigation and frequently on appeal, appellants have challenged the authority of the Attorney General to represent these parties. Appellants assert that the Attorney General cannot represent the ICDs because it amounts to the prohibited conduct of the private practice of law. They offer no relevant authority to support their position.
Appellants argue Arkansas Code Annotated section 25-16-701 (Repl. 2014) governs. Section 25-16-701 provides that "the Attorney General shall not engage in the private practice of law, which shall include, but not be limited to, acting as office counsel, participating in litigation, and accepting retainers." Appellants' reliance on this statutory section is misguided because immediately thereafter Arkansas Code Annotated section 25-16-702(a) clearly provides that "the Attorney General shall be the attorney for all state officials, departments, institutions, and agencies. Whenever any officer or department, institution, or agency of the state needs the services of an attorney, the matter shall be certified to the Attorney General for attention." Section 25-16-702(a) specifically authorizes the Attorney General to represent individual defendants who are sued for actions taken in the course and scope of their employment. We affirm on this point.
VI. Dismissal Based on Failure to State a Claim
In this point on appeal, appellants seem to argue that the circuit court erred by granting the Attorney General's motion to dismiss based on failure to state a claim because this defense was waived. This assertion is based on the premise that the Attorney General's motion to dismiss never mentions Rule 12(b)(6) or that appellants failed to allege facts on which relief could be granted. Instead, the Attorney General's motion to dismiss indicates dismissal was sought "for failure to state any legal theory under which they are entitled to relief." Despite the fact that the Attorney General's brief specifically references Rule 12(b)(6) and failure to state facts on which relief can be granted and that appellants responded to those arguments, appellants contend that they were not on notice of the Rule 12(b)(6) defense.
We summarily dispose of this point on appeal. Appellants did not raise this specific argument before the circuit court. An appellant must raise an issue with specificity and make an argument to the circuit court to preserve it for appeal. Greenwood v. Anderson , 2009 Ark. 360, 324 S.W.3d 324. We affirm on this point.
VII. Statute of Limitations
Here, appellants argue that the circuit court erred by dismissing claims XIII-XXVIII of their complaint based on the statute of limitations. This portion of appellants' argument is brief and particularly unfocused.
In yet another example of the chaotic and confusing nature of their brief, appellants begin by repeating a previous argument. They contend that the Attorney General could not represent the ICDs, and accordingly, a motion to dismiss raising the statute-of-limitations defense was not made on their behalf. Based on our discussion in part V of this opinion, this argument is without merit.
Any remaining arguments for reversal on this point are lacking development. Appellants make the conclusory statement that their allegations from 2014 are sufficient to withstand any statute-of-limitations defense. Thereafter, appellants merely direct our attention to their arguments from a previous section of their brief regarding the dismissal of the ICDs for failure to state a claim, which we addressed in part II(D) of this opinion.
We first note that the arguments set forth in the section referenced are not entirely relevant to this point on appeal. That section of appellants' brief addresses only some of the claims they challenge in this point on appeal. We also point out that several of the claims for which appellants seek relief are based on criminal statutes or administrative law-neither of which creates a private cause of action.
Moreover, we have previously rejected appellants' argument advanced in that portion of their brief, determining that the circuit court properly ruled that appellants failed to state a claim on which relief could be granted against the ICDs. Thus, irrespective of whether these claims were filed within the applicable statute of limitations, they were not actionable, and dismissal was proper.
It is appellants' burden to demonstrate error. See RAD-Razorback Ltd. P'Ship , supra. Our court need not address arguments that lack development and citation to authority. See, e.g. , Koch v. Adams , 2010 Ark. 131, at 6-7, 361 S.W.3d 817, 821. Because appellants offer no additional argument for reversal that has been properly developed for our review, we affirm on this point.
VIII. Overcharging
Appellants challenge the amount the Pulaski County Circuit Clerk's office charged them for preparation of the record. Once again, there are jurisdictional issues that preclude us from reaching the merits. Appellants first advanced this argument in a motion filed on October 10, 2016, which was nearly six months after the dismissal order had been entered and after the notice of appeal had been filed. The circuit court never ruled on this motion. Because it is an appellant's responsibility to obtain a ruling to preserve an issue for appeal and that was not done in this instance, we do not reach the merits of this argument. Meador v. Total Compliance Consultants, Inc. , 2013 Ark. 22, 425 S.W.3d 718.
IX. The Denial of the Motion to Recuse
Finally, appellants contend that this case must be reversed because the circuit court erred by denying their motion to recuse. They argue that proof of the circuit court's bias comes from the judge's "words and treatment of this case" on March 22, 2015, "when a scheduled hearing was denied" and "in a manner prejudicing Watkins' in a record where no defendant has shown fault with Watkins' complaint, and each ruling toward dismissal is unsupported by facts clearly on the face of the record." (Emphasis in original.)
Canon 2 of the Arkansas Code of Judicial Conduct provides that a "judge shall perform the duties of the judicial office impartially, competently, and diligently." A judge is presumed to be impartial, and the party seeking recusal must demonstrate bias or prejudice on the part of the judge. Owens v. State , 354 Ark. 644, 128 S.W.3d 445 (2003). On appeal, our court evaluates the denial of a motion to recuse based on whether there has been an abuse of discretion. Ferguson v. State , 2016 Ark. 319, 498 S.W.3d 733.
It is noteworthy that appellants first filed a motion to recuse in April 2016 after the hearing in which the circuit court had ruled adversely to them. Appellants offer several reasons that they believe Judge Fox was biased and should have recused from this matter. Specifically, appellants contend recusal was appropriate because the circuit judge did not state all party names at the hearing, referred to two sides rather than multiple parties, dismissed the case without referencing any of their specific claims, refused argument at the hearing, criticized their complaint, did not grant a default judgment against the ICDs, and did not provide notice of hearing to the ICDs.
We hold that it was not error to deny the motion to recuse. Appellants allege no specific conduct by the circuit court that is indicative of bias. The "mere fact of adverse rulings is not enough to demonstrate bias." Irvin v. State , 345 Ark. 541, 549-50, 49 S.W.3d 635, 641 (2001). Moreover, a circuit court is not required to hold a hearing on pending motions. Accordingly, we hold that appellants failed to show that the circuit court abused its discretion in denying their motion to recuse, and we affirm on this point.
Affirmed.
Gladwin and Murphy, JJ., agree. | [
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MIKE MURPHY, Judge
Appellant Austin Ballard filed a petition to adopt his wife's, Hailee Ballard's, five-year-old son, BLH. The child's biological father, Curtis Howard, contested the adoption. After a hearing, the lower court denied the petition. It found that Howard had failed to support his child for a twelve-month period despite having some income but nevertheless denied the adoption petition, finding that to do so would not be in the child's best interest. On appeal, the Ballards argue that the court erred in finding that the adoption was not in BLH's best interest. We affirm.
I. Facts
The court heard the following testimony. Curtis Howard testified that he was sixteen when BLH was born out of wedlock, and that he was currently in jail for robbery and aggravated assault. He anticipated his release in 2021. Curtis testified that he loves his son and wants to be a part of BLH's life when he gets out of jail.
Hailee Ballard testified next. She testified that she was seventeen when BLH was born. Shortly after BLH was born, Hailee and Curtis lived first with her mother, then with Curtis's mother (Donna Posey), and then back with her mother before they quit dating and Hailee got her own place.
According to Hailee, Curtis was "a deadbeat" who didn't have a job, drew Social Security, and used drugs. She said that during the first year of BLH's life, her mother and Curtis's mother helped support them. She testified that after she and Curtis broke up, he did not contribute to raising BLH. She testified that her husband, Austin, loves BLH and has raised him as his own. In response to the court's questioning, Hailee further discussed that BLH had seen Curtis's mother frequently, "as well as that side of the family," and that Donna has a good relationship with BLH. She testified that BLH sees Curtis's family and has a good relationship with the Howard family, and if that relationship were to stop, it would be detrimental to the child. She said she doesn't have any obligation to let Curtis's family see the child but that she does "out of the benefit of my child having all the family he can to love him." She said that severing ties between BLH and the Howard side of the family "would just crush him."
The court heard testimony from Austin Ballard. Austin said that he has been a part of BLH's life since BLH was born. He testified that Curtis used to do a lot of drugs and never helped Hailee with BLH. Austin talked about how, when BLH was a baby, he would get up with him in the middle of the night to feed him and change his diapers. He taught BLH to ride a bike. He is very willing to establish a parent-child relationship with BLH.
Hailee's maternal grandmother, Shirley Willard, testified that Hailee and Austin live with her. Shirley described Hailee and Austin as very good parents. She stated that Austin treats BLH as if he is his own son and that they have a father-son bond. Shirley stated that Hailee and Donna are friends and that there was no indication that Hailee would not allow Donna continued visitation with BLH if the adoption were granted.
Donna Posey, Curtis's mother, testified that she and BLH have a special relationship and that Hailee and Curtis lived with her for about six months after BLH was born. When BLH was two, Donna kept him every other weekend. She loves BLH and he is closely bonded with her and other members of her side of the family.
The court ruled from the bench at the conclusion of the hearing:
In order for an adoption to be granted, you need a consent of the biological parent, or ties having been severed, or a waiver of consent. And it would be the finding in the child's best interest for the adoption to proceed.
In this case, I think it is fairly clear that Mr. Howard has failed to support the child for 12-consecutive-months during his lifetime, so consent is not required. The bigger issue is what is in the best interest of this child? The fact that each party was extremely young when this child was born, Mr. Howard is only 21, now, and that has to play a role in this decision. As to what is going to happen in the future, I don't know, nobody here knows what is going to happen.
There was significant testimony about the significant relationship that the minor child has with the Howard family. It was admitted even by the mother that there was a significant relationship there. I don't think it would be in the best interest of this child to sever that relationship with an adoption.
There are a lot of issues in this case. I have no doubt that where the child is right now is the best place for him to be. He's got a loving mother, and what he knows to be his father there. I think that is very important that it stay in place.
The concerns they have about Mr. Howard can be addressed with a lot less drastic remedy than an adoption. Again, because of this significant relationship that this child has with the Howard family, I find that it is not in the best interest to grant the adoption today. So that petition will be denied.
The Ballards now bring this timely appeal, arguing that the court erred in finding the adoption would not be in BLH's best interest.
II. Standard of Review
We review the record of an adoption proceeding de novo. Ducharme v. Gregory , 2014 Ark. App. 268, at 6, 435 S.W.3d 14, 18. Generally, consent to an adoption is required by the father of the minor child to be adopted. Ark. Code Ann. § 9-9-206(a)(2) (Repl. 2015). Under certain circumstances, however, the consent of the father may not be required. Arkansas Code Annotated section 9-9-207(a)(2)(i) & (ii) provides that consent to adoption is not required of a parent of a child in the custody of another, if the parent, for a period of at least one year, has failed significantly without justifiable cause to communicate with the child or to provide for the care and support of the child as required by law or judicial decree. However, the mere fact that a parent has forfeited the right to have his consent to an adoption required does not mean that the adoption must be granted-the court must further find from clear and convincing evidence that the adoption is in the best interest of the child. Waldrip v. Davis , 40 Ark. App. 25, 26, 842 S.W.2d 49, 50 (1992).
Here, the finding regarding consent is not disputed. The trial court found that Curtis's consent to the adoption was not required because he had failed to provide support for BLH for a period of one year. Nonetheless, it found that the adoption was not in BLH's best interest. Concerning best interest, specifically, we will not reverse a trial court's decision unless it is clearly erroneous or against the preponderance of the evidence. Hollis v. Hollis , 2015 Ark. App. 441, 468 S.W.3d 316. We have said that in cases involving minor children, a heavier burden is cast upon the trial court to utilize to the fullest extent all its power of perception in evaluating the witnesses, their testimony, and the child's best interest; that the appellate court has no such opportunity; and that we know of no case in which the superior position, ability, and opportunity of the trial court to observe the parties carry as great a weight as one involving minor children. Ducharme , supra .
III. Discussion
The appellants begin their argument by discussing grandparent-visitation law. They argue that because the grandmother has no statutory grandparent-visitation order, she does not have any enforceable right to a relationship with BLH. Quoting Quarles v. French , 272 Ark. 51, 54, 611 S.W.2d 757, 759 (1981), they argue that Donna "had no right" to "offer 'such evidence as may be relevant to the focal issue, i.e., whether the proposed adoption is in the best interest of the children.' "
The Ballards conflate, however, a right that a grandparent may or may not have with what is in the child's best interest. The issue here is not whether Donna may intervene (as was the issue in Quarles and its progeny) but whether declining to sever the relationship BLH has with his paternal family is in BLH's best interest. Quarles is simply not applicable. Nor did the appellants object to Donna being called as a witness, her testimony about her relationship with BLH, or her testimony about BLH's relationship with his extended paternal family. Because there was no objection to Donna's testimony, to whatever extent the appellants now claim it was error for the court to consider, it is not preserved for our review. See, e.g. , Nazarenko v. CTI Trucking Co., Inc. , 313 Ark. 570, 584, 856 S.W.2d 869, 876 (1993) ("Few tenets are more firmly established than the rule requiring a contemporaneous objection in order to preserve a point for review."). Additionally, this court and our supreme court have affirmed trial courts that consider the relationship between the children and the extended family of the parent whose rights would be terminated by an adoption as part of a best-interest analysis. In re Adoption of J.P. , 2011 Ark. 535, at 19, 385 S.W.3d 266, 278 ; Hollis , 2015 Ark. App. 441, at 10, 468 S.W.3d 316.
The Ballards then go into a detailed discussion comparing Curtis with absent parents in Lagios v. Goldman , 2016 Ark. 59, 483 S.W.3d 810, cert. denied , --- U.S. ----, 137 S.Ct. 77, 196 L.Ed.2d 35 (2016), reh'g denied , --- U.S. ----, 137 S.Ct. 540, 196 L.Ed.2d 435 (2016) ;
In re Adoption of A.M.C. , 368 Ark. 369, 246 S.W.3d 426 (2007) ; Matter of Adoption of Lybrand , 329 Ark. 163, 946 S.W.2d 946 (1997) ; T.R. v. L.H. , 2015 Ark. App. 483 ; and Sanders v. Savage , 2015 Ark. App. 461, 468 S.W.3d 795. They assert that the focus should have been on the relationship between the child and the natural parent instead of the relationship between the child and the person trying to adopt. They contend that Austin meets the very definition of a loving parent, whereas Curtis meets the very definition of a father who has not discharged his duties as a parent. Even still, we note one major distinction between the current case and those cited by the Ballards: in every single case cited by the Ballards, either this court or our supreme court affirmed adoption petitions granted by the trial courts.
Instead, this case is more like Hollis , supra . There, the lower court denied a stepparent adoption on a best-interest finding. The mother, while not incarcerated, had a history of drug and alcohol abuse and a DWI conviction, and one of her boyfriends had abused the minor child to be adopted. There was also evidence, however, that the mother had visited the minor child one time at school, was trying to better herself, and had photos of her and the minor child smiling together. There was also evidence that the minor child, as here, had a substantial relationship with his maternal grandmother, whom he loved and called "Nana." And, as here, the child had a wonderful parent-child relationship in place with the stepparent hoping to adopt. Despite these admittedly sparse findings, we affirmed. We did so because when the issue is one of terminating parental rights, there is a heavy burden on the party seeking to terminate the relationship, and we must give due regard to the trial court's personal observations and assessments of the credibility of the witnesses.
So, as in Hollis , the evidence before us supports the trial court's findings. Donna and Hailee testified that there was a significant bond between the child and Donna and his paternal extended family. Hailee testified that it would "crush" BLH if his paternal relatives were no longer in his life. Curtis testified that "Ms. Ballard and I separated when [BLH] was a year and a half old. If I legally remain his parent, as soon as I'm not incarcerated, I would be involved in everything in his life." Additionally, the court's statement that "the fact that each party was extremely young when this child was born, Mr. Howard is only 21, now, and that has to play a role in this decision," also supports the finding. The trial court's decision that the Ballards failed to meet their burden by clear and convincing evidence that adoption was in the best interest of BLH was not clearly erroneous.
Affirmed.
Abramson, Gladwin, Vaught, and Brown, JJ., agree.
Harrison, Klappenbach, Glover, and Hixson, JJ., dissent.
It is settled law that an adoption should be granted when it is in the best interest of the child involved. Ark. Code Ann. § 9-9-214(c) (Repl. 2015). It is not what is in the best interest of grandparents or relatives. In evaluating the best interest of a child, it is appropriate to consider stability in the life of the child. See Freshour v. West , 61 Ark. App. 60, 962 S.W.2d 840 (1998). In this case, B.H.'s stepfather, Jesse Ballard, is the only father figure known to the child. B.H.'s biological father, Curtis Howard, is currently in prison having been convicted of committing violent crimes and shall remain in prison until the child is nine years old, if not older. There can be little doubt that granting Jesse's petition for adoption would have promoted stability in the child's life, and in my view the trial court clearly erred in failing to do so. The trial court's sole reason for denying the adoption was because of B.H.'s relationship with his paternal grandmother, Donna Posey, and his relatives on that side of the family. On the totality of this record, focusing on the best interest of the child , I would hold that this relationship was an insufficient reason to deny Jesse's petition. Based on my belief that the trial court clearly erred in finding that the adoption was not in B.H.'s best interest, I respectfully dissent from the majority opinion. I would reverse the trial court and remand for an order of adoption.
Although we give deference to the trial court to assess credibility and to weigh the evidence, in this case the material facts are largely undisputed, and the credibility of the witnesses was not a factor. Because B.H.'s father, Curtis, had failed to support B.H. for a period of more than a year, the trial court properly found that Curtis's consent to the adoption was not required. Curtis is a virtual stranger to B.H., having been committed to prison when B.H. was two years old and failing to perform the duties of a father before then. By his own testimony, Curtis will remain in prison until at least December 2021.
A review of the pre-prison relationship between Curtis and the child is demonstrative. Curtis, Hailee, and B.H. lived in and out of various family members' homes except for a two-month period when they had an apartment. During this period, Curtis never held a job and received Social Security benefits of $800 per month. Those benefits were forfeited when Curtis was incarcerated. Hailee testified that she had at least three jobs during this time period. It was uncontradicted that Curtis took drugs on a regular basis, and there was evidence that he did so even while caring for the infant when Hailee was at work. The straw that broke the camel's back was that Curtis's mother called Hailee looking for Curtis because Curtis was on drugs and stole some items from her home.
Details about the aggravated assault and robbery that resulted in his imprisonment are not in the record; however, it appears that Curtis has changed little while in prison. Curtis testified that while incarcerated, he has incurred several infractions including insolence to staff members, three refusals to obey orders, refusal of assignments, and two unexcused absences. Also, Curtis continued to fail to support or communicate with B.H. It is with this extensive background that Donna Posey, his mother, testified that it was her hope that when Curtis gets out of prison Curtis can step up to the plate and step into B.H.'s life and be a good person.
The undisputed evidence further demonstrates that for the past several years, B.H.'s stepfather, Jesse, has maintained a close father-and-son type of relationship with B.H. Jesse has assumed a parenting role and has helped Hailee raise B.H., doing such things as changing his diapers, feeding him, teaching him to ride a bicycle, and taking him fishing. Jesse is, for all intents and purposes, the only father the child knows.
The trial court denied Jesse's adoption petition because of B.H.'s significant relationship with his paternal grandmother, Donna, and B.H.'s relatives on that side of the family. We have held that a child's relationship with his grandparents on the side of the family resisting the adoption is a proper consideration in deciding whether adoption is in the child's best interest. See Hollis v. Hollis , 2015 Ark. App. 441, 468 S.W.3d 316. In Hollis , we affirmed the denial of a stepparent adoption on a best-interest determination, based in part on the negative effect of the loss of contact with the grandparents on the other side of the family. However, I submit that the facts in Hollis are readily distinguishable from the facts of this case.
In Hollis , the mother resisting the stepmother's adoption petition was trying to better herself as a person and had maintained contact with the child. She was working two jobs and had tried to send some child support until the stepmother refused visitation. The mother in Hollis visited the child at school, and photographs of the mother and child showed the child to be happy. The trial court found that the mother's failure to provide care and support for the child was in part due to her financial problems, which the court found she was curing. The evidence showed that the mother had made significant strides to improve her life and her relationships, including her relationship with the child. In Hollis , the child also had a good relationship with the maternal grandmother. But when the trial court in Hollis found that the proponents of the adoption had failed to prove best interest, it appears that the trial court relied primarily on the mother's rehabilitative efforts and conduct toward the child and considered the child's relationship with his grandmother as supplemental supporting evidence. The mother's efforts in Hollis were a significant factor in the trial court's decision, and in my view the child's relationship with the maternal grandmother, standing alone, would have been an insufficient reason to deny the adoption.
In contrast to Hollis , the father in the present case is a nonfactor-in fact, a negative factor. He is incarcerated for committing violent crimes and had limited, and in fact, harmful, involvement with the child before that. B.H. does not know Curtis to be his father, and at the very earliest Curtis will be released from prison when the child is nine years old, at which time the child's already strong relationship with his stepfather will likely be even more established. The paternal grandmother, Donna, has no court-ordered visitation rights, and she agreed with Hailee that B.H. would not be told during visitation with her that Curtis is his father. Nevertheless, Hailee has fostered the relationship between B.H. and Donna by allowing Donna frequent visitation with the child. Although she has no legal obligation to allow this visitation to continue, Hailee made it clear in her testimony that whether or not the adoption was granted, she had no interest in severing this tie.
In my view, the relationship that Curtis's side of the family has with B.H. was not a sufficient basis upon which to deny the adoption when compared with the evidence clearly demonstrating that the adoption is in B.H.'s best interest and would promote stability in his life. In my de novo review of this case, I would hold that the trial court clearly erred in finding that the adoption was not in B.H.'s best interest, and I would reverse and remand for an order granting Jesse's adoption petition.
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RAYMOND R. ABRAMSON, Judge
Luz Rivera appeals from an order of the Arkansas Board of Review (Board) denying her unemployment benefits. The Board affirmed the decision of the Appeal Tribunal (Tribunal) that denied her benefits upon finding that she willfully made a false statement or misrepresentation of a material fact, or willfully failed to disclose a material fact when filing a claim for benefits. In its order, the Board also affirmed the Tribunal's decision declining to reopen Rivera's case after finding that she did not have good cause for failing to appear at the scheduled hearing on September 6, 2017. On appeal, Rivera challenges the Board's decision and argues that there was not substantial evidence to conclude that an "omission of $9.60" was a willful false statement, misrepresentation, or failure to disclose and that the Board improperly denied her request to reopen her case based on the hearing that she missed. We affirm.
Rivera filed for unemployment benefits on May 19, 2017. In early June, Rivera obtained employment through Dillard's Dollars, Inc. (Dillard's). On June 23 a "New Hire Employer Wage Audit" was sent to Dillard's, which revealed that Rivera was paid $9.60 for work during the week ending June 3, although Rivera had reported no earnings for that period. The audit also showed that, for the week ending June 17 Rivera reported earning $234.24, about four dollars less than the $238.80 that she actually earned. Based on this information, the Department of Workforce Services issued a notice of action determining that the $9.60 omission was willful and that it disqualified her from receiving unemployment benefits.
Rivera timely filed an appeal, and a telephone hearing was scheduled for September 6, 2017, in Appeal No. 2017-AT-05804. Rivera, for a variety of reasons discussed hereafter, did not attend the September 6 hearing in front of the Tribunal. The Tribunal hearing officer found that a preponderance of the evidence indicated that in filing a continued claim for the week ending June 3, 2017, Rivera underreported her wages in order to obtain benefits to which she was not entitled, and it concluded that the omitted $9.60 was a willful false statement, misrepresentation, or failure to disclose. Rivera was disqualified from receiving benefits for a total of 16 weeks. The hearing officer did not conclude that the four-dollar error from the week of June 17 was willful.
Upon receiving the Tribunal's decision, Rivera requested that the Tribunal reopen the decision because she had good cause for missing the September 6 hearing. During the good-cause hearing on October 19, 2017 (Appeal No. 2017-AT-07037), Rivera testified that she receives all of her mail at a post office box, which she checks every two to three weeks. She testified that she did not receive any notification through the online system that she would be receiving a letter, and she testified that she expected communications in that same online format from the Department of Workforce Services. She stated that she had planned to check her mail on August 31, but she was in a car accident on August 30, 2017, and was incapacitated by pain and the medications she was prescribed for her injuries. Due to this incapacitation, she was unable to retrieve her mail until the afternoon of September 6--two hours and forty-five minutes after the hearing was scheduled to begin. The Tribunal found that she did not show good cause and affirmed the previous decision in Appeal No. 2017-AT-05804.
Rivera filed an appeal with the Board and proffered evidence about the omitted $9.60. The Board affirmed and adopted the Tribunal's decisions in both Appeal No. 2017-AT-05804 and Appeal No. 2017-AT-07037 in its opinion-Appeal No. 2017-BR-01551. Rivera now appeals to our court.
Our court does not conduct a de novo review in appeals from the Board. Snyder v. Dir. , 81 Ark. App. 262, 101 S.W.3d 270 (2003). Instead, we review the Board's findings in the light most favorable to the prevailing party and affirm the Board's decision if it is supported by substantial evidence. Price v. Dir. , 2013 Ark. App. 205, 2013 WL 1232103. Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion. Id. Even when there is evidence upon which the Board might have reached a different decision, the scope of the judicial review is limited to a determination of whether the Board reasonably could have reached the decision it did based on the evidence before it. Id. Our function on appeal is not merely to rubber-stamp decisions arising from the Board. Id. However, if fair-minded persons could reach the Board's conclusions on the same evidence, then we must affirm its decision. Snyder , supra.
On appeal, Rivera argues that the Board's decisions are not supported by substantial evidence. We disagree. When Rivera filed for unemployment benefits on May 19, 2017, she was given a handbook that contained information on how to report earnings. Rivera subsequently obtained employment with Dillard's. A wage audit of Rivera's possible wages earned during her claim period was sent to Dillard's on June 23, 2017. Dillard's responded July 1, showing that Rivera earned $9.60 for the week ending June 3 and $238.80 for the week ending June 17. Rivera had reported that she had no earnings for the week ending June 3 and had earnings of $234.24 for the week ending June 17. The Department of Workforce Services then issued a determination that Rivera did not correctly report her work or earnings for the week ending June 3, 2017. She was disqualified pursuant to Arkansas Code Annotated section 11-10-519(a)(2) (Supp. 2017). The determination was upheld by both the Tribunal and the Board.
Rivera failed to report any earnings at all for the week of June 3, 2017. She also failed to appear at the hearing scheduled by the Tribunal to explain why she failed to report earnings for that week. While we are sympathetic to Rivera's plight and the fact she was denied benefits over a mere $9.60 disparity, we are bound by our standard of review. Moreover, Rivera was aware that she worked for a short period of time the week of June 3 and was given the information in the handbook that required her to report those wages. The failure to report any earnings for that week supports the finding that her actions indicated a willful false statement or misrepresentation of a material fact. There has been no evidence or testimony presented to show that Rivera was unaware that she was required to report her earnings.
As to Rivera's second appellate point-that substantial evidence does not support the decision that she did not have good cause for failing to appear at the September 6, 2017 hearing-we also affirm. Rivera received the "Notice of Agency Decision" mailed August 9, which found that she failed to correctly report her earnings for the week of June 3. The notice also contained her appeal rights. Rivera timely filed an appeal to the Tribunal, which was received on August 16. The Tribunal then sent Rivera a notice mailed August 22, which advised her that a telephone hearing would be held September 6. Rivera did not pick up the letter from her post office box until the afternoon of September 6-after the hearing was over.
Rivera requested that the case be reopened based on good cause. However, we cannot say good cause was shown in this case. Rivera did not check her mail for three weeks. We note that she was in a car wreck on August 30 that prevented her from checking her mail for another week. But, we emphasize that the hearing notice was mailed on August 22-eight days before she had her wreck. If she had checked her mail during that time period, she would have been aware of the hearing and could have either been able to participate or request a postponement if her car accident had incapacitated her to the extent that she could not participate in the phone hearing. We hold that there was substantial evidence to support the Board's determination that there was not good cause to reopen Rivera's case. Accordingly, we affirm.
Affirmed.
Gladwin and Murphy, JJ., agree. | [
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BRANDON J. HARRISON, Judge
Moses Watts, Sr., and Ruby Watts appeal a $1,995 judgment representing just compensation for the condemnation of a utility easement over their property. A timeline is helpful to understand their arguments against the condemnation process.
• June 1 (2015) . Entergy Arkansas, Inc., filed a petition in circuit court, titled an "application," to condemn a portion of the Wattses' property. The petition stated, in part, that Entergy engineers had determined a permanent utility easement was needed across the Wattses' property and that an agreement with the property owners could not be reached.
• June 15 . The circuit court granted Entergy an order of immediate possession of the easement. Entergy deposited $1,995 into the court's registry-what it considered to be the fair-market value of the property needed for the use. See Ark. Code Ann. § 18-15-508 (Repl. 2015) (When an electric-utility company deposits money in compliance with the order of the court, the company can enter the land and proceed with its work before a jury trial on just compensation.).
• June 27 . Clay Nealy, a process server for The Covert Connection, LLC, personally served Moses Watts, Sr., with the June 1 petition and June 15 order. Substituted service was made on Ruby Watts. The summonses issued in the case stated that Ruby and Moses had thirty days to file a written answer to the lawsuit and "attached complaint."
• July 6 . Proof of service of the summonses was filed in the circuit court.
• July 21 . The Wattses filed a "Motion for Dismissal of Application for Condemnation of Lands And For Immediate Possession Thereto." They argued, among other things, that the circuit court's order of immediate possession was "illegal," "unreasonably wrong," and a violation of their constitutional rights under the Fourteenth Amendment because "the Defendants [the Wattses] were served with Motion and Order at the same time."
• July 23 . Entergy responded to the motion to dismiss and argued that it had complied with all Arkansas laws allowing it to pursue eminent-domain rights to install and maintain electrical lines, poles, and facilities.
• February 19 (2016) . Ruby Watts argued during a hearing on the Wattses' motion to dismiss that the Wattses were denied due process when the June 1 petition was filed and the immediate order of possession was given "seven, eight, nine days later." "[W]e were not afforded the ten-day notice to come in and object or answer [the June 1 petition] ... We didn't get that right ... due process under the Fourteenth Amendment."
• February 22 . The circuit court denied the Wattses' motion to dismiss. The court wrote that Entergy complied with "the applicable statutory law ... Ark. Code Ann. §§ 18-15-501, et seq." It concluded that the "due process rights of Moses Watts, Sr. and Ruby Watts have not been violated."
• August (2017) . A Jefferson County jury rendered a verdict on just compensation for the property Entergy took, and the circuit court entered a judgment according to the jury's verdict. Moses and Ruby Watts appealed.
The Wattses' first point on appeal is hard to decipher, but we read it to contend that the Wattses' due-process rights were violated because the circuit court issued the June 15 order of immediate possession on an ex parte basis and that they did not get the ten-day notice required in Ark. Code Ann. § 18-15-504(a). The Wattses also argue that they had a right to request a preliminary hearing and that it is contrary to public policy and judicial integrity to permit private utilities to delay service of condemnation-related papers to facilitate ex parte seizures of property.
We begin with the due-process concerns. Procedural due process generally includes the right to notice and an opportunity to be heard before a person may be deprived of a significant property interest. U.S. Const. amend. V, XIV ; Sniadach v. Family Fin. Corp. , 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349 (1969). In a condemnation proceeding, due process does not require the entity condemning the property to give the landowner notice in advance of the taking. Bragg v. Weaver , 251 U.S. 57, 40 S.Ct. 62, 64 L.Ed. 135 (1919) ; see also Wilmoth v. Sw. Ark. Util. Corp. , 2015 Ark. App. 185, at 3-4, 457 S.W.3d 694, 697-98. The constitutional minimum is that the owner be given an opportunity to be heard at some stage of the proceeding and reasonable notice of the pending suit. See Mullane v. Cent. Hanover Bank & Trust Co. , 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (holding that due process requires "notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections."); Walker v. City of Hutchinson, Kan. , 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 178 (1956) (holding that notice by publication in an eminent-domain action, even when in rem, is constitutionally inadequate when reasonable alternatives would provide better notice to the owner and interested parties).
We conclude that no due-process violation occurred. The Wattses received personal notice of the lawsuit when Entergy's petition for condemnation and the court's ex parte order were personally handed to Moses Watts and substituted service was given to Ruby Watts. Though it was (understandably) counterintuitive to the Wattses, that the order of possession was obtained ex parte is not itself a violation of the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Wilmoth , 2015 Ark. App. 185 at 3-4, 457 S.W.3d at 697-98. While the order of possession was entered before the Wattses received any notice, the circuit court heard the property owners' arguments during several pretrial hearings. And the Wattses were permitted a jury trial during which they presented evidence on why they were not being justly compensated for Entergy's taking. All this occurred before a final judgment was entered in the case. The constitutional minimum was met, and the circuit court correctly ruled that there were no due-process violations.
To the extent the Wattses argue here that we should reverse the adverse judgment because they did not receive the ten-day notice required under the statute, we also affirm. Here is the part of the statute at issue:
(a) If an electric utility, having surveyed and located its line under the power conferred by this section... fails to obtain, by agreement with the owner of the property through which the line may be located, the right-of-way over the property, it may apply by petition to the circuit court of the county in which the property is situated to have the damages for the right-of-way assessed, giving the owner of the property at least ten (10) days' notice in writing by certified mail, return receipt requested, of the time and place where the petition will be heard.
Ark. Code Ann. § 18-15-504(a).
Subsection 504(a) is part of a rather extensive legislative scheme allowing private corporations to condemn property for a public purpose. See Ark. Code Ann. § 18-15-503(b)(1). A condemning authority like Entergy has broad discretion to determine the necessity of the taking of private land; but it may not condemn more property than is necessary, must use it for a public purpose, and must pay the owner just compensation for the taking. Ark. Const. art. 2, § 22. Each of Arkansas's eminent-domain statutes may require notices and procedures that depart from the Arkansas Rules of Civil Procedure. There has been a call for the legislature to clarify the "patchwork of statutes on eminent domain." City of Fort Smith v. Carter , 364 Ark. 100, 110, 216 S.W.3d 594, 601 (2005).
As we mentioned earlier, the Wattses argued to the circuit court that they did not receive the type of notice related to Entergy's initial petition that Ark. Code Ann. § 18-15-504(a) requires. Specifically, they complain that the ex parte order of possession was entered before they received notice of the lawsuit. At no time did the Wattses challenge Ark. Code Ann. § 18-15-504(a) as being unconstitutional, nor did they argue that the June 27 personal service of process was invalid. Like the circuit court, we accept Entergy's position that subsection 504(a)'s ten-days' notice of the "time and place where the petition will be heard" refers to a trial date. See Ark. Const., art. 12, § 9 (Arkansas Constitution gives landowners a right to a jury trial when a private corporation is the condemning authority). Entergy could not provide notice of a trial date to the Wattses when it initially served the landowners because the trial date had not yet been scheduled. It is undisputed, however, that the Wattses knew about Entergy's petition more than ten days before the jury trial convened; in fact, the trial was held more than two years after Entergy had filed its initial petition in the circuit court. Because the Wattses received notice of the jury-trial date more than ten days in advance of the trial, we see no reversible error and affirm the circuit court's order.
At the end of their brief filed in this court, the Wattses challenge the evidence supporting the jury's verdict as being "manifestly insufficient" for two reasons. First, the jury did not award damages for land that was severed from the rest of the property by the easement; second, the jury did not give separate compensation for the value of the timber within the easement.
When a private corporation takes property through the process of eminent domain, damages are properly awarded on the full fair-market value for the easement taken, plus any damage occurring to the remainder of the property. Arkansas Louisiana Gas Co. v. Howell , 244 Ark. 86, 90, 423 S.W.2d 867, 869 (1968). A landowner must prove by a preponderance of the evidence the amount of just compensation. Prop. Owners Imp. Dist. No. 247 of Pulaski Cty. v. Williford , 40 Ark. App. 172, 181, 843 S.W.2d 862, 868 (1992). We review the jury's verdict to see if it is supported by substantial evidence. Ark. St. Hwy. Comm'n v. Taylor , 269 Ark. 458, 466, 602 S.W.2d 657, 661 (1980).
In this case, the circuit court granted Entergy's motion in limine to exclude any undisclosed expert witness and any other witness who was not also a record title owner from testifying about the property valuation. That ruling has not been challenged by the Wattses here. During the trial, the only person who testified about the property's value was Entergy's appraiser, J.T. Ferstl, who said that he considered, but did not apply, severance damages to the south end of the property during his appraisal. According to Ferstl, the southern part of the property severed by the easement was not damaged because the owners used the southern portion as timber property, it could continue to be used as a timber property, and the primary residential potential of the acreage was the home, which was on the north end of the property. This testimony is substantial evidence that supports the jury's conclusion that the Wattses suffered no severance damages. As for additional compensation for trees within the easement, that is not a separate item of damage under Arkansas law. Cramer v. Ark. Ok. Gas Corp. , 316 Ark. 465, 468, 872 S.W.2d 390, 392 (1994) (utility that acquired easement to construct gas pipeline through eminent domain proceeding was not required to compensate landowner for injury to trees occurring during construction of pipeline).
Affirmed.
Abramson and Brown, JJ., agree. | [
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DAVID M. GLOVER, Judge
Roy Justus appeals from the revocation of his suspended imposition of sentence. For his sole point of appeal Justus contends the State failed to meet its burden of proof because there was no evidence of the terms and conditions he was alleged to have violated. We affirm.
Justus pleaded guilty to the underlying offenses of breaking or entering and theft of property on April 24, 2013. On the breaking-or-entering offense, a Class D felony, he received sixty months' suspended imposition of sentence. On the misdemeanor theft-of-property offense, he received twelve months' suspended imposition of sentence.
The State filed a petition to revoke on January 14, 2014, based on Justus being charged with the commission of new offenses. The petition was withdrawn, however, upon Justus pleading guilty to the new offenses. On October 13, 2017, and amended on January 31, 2018 (to change a date regarding restitution payments and to add the new offense of first-degree battery), the State filed the petition to revoke that was heard on January 31, 2018, and resulted in the revocation Justus now appeals.
At the January 31, 2018 revocation hearing, Lisa Whetstine, a fine and restitution coordinator with the prosecutor's office, testified Justus was to begin paying $ 55 a month for restitution on May 24, 2013. She explained his last payment was made July 23, 2013.
Felicia White, Justus's ex-girlfriend, testified that on the night of October 19, 2017, she went to meet him at Lee Creek Park in Van Buren. She stated he did not "appear in the right state of mind"; "he was acting a little bit off." She said the meeting was not peaceful; they started arguing; she was trying to get away from him; he pulled a knife; and he cut her on her wrist. She acknowledged she met him down at the riverfront looking for some drugs. According to her, he cut her on both wrists, and it all happened quickly. She identified State's exhibit 1 as a photo showing the cut on her right hand. Felicia stated she went to the hospital that night, got her mom to go with her, and filed a police report and charges. She then testified, "[T]hey stitched [her] up at the hospital"; her wound has fully healed; and she has a two-inch scar from the cut but suffers no further disability from the injury.
The State rested and Justus moved to dismiss, arguing the State had not made a prima facie case that he had violated the terms and conditions of his suspended sentence. The trial court denied the motion and found Justus had violated his terms and conditions. The trial court accepted the prosecutor's recommendations and sentenced Justus to six years in the Arkansas Department of Correction, with four years suspended. This appeal followed.
For his sole point of appeal, Justus contends the trial court erred in denying his motion to dismiss because the State did not meet its burden of proving he had violated the terms and conditions of his suspended sentence. More precisely, he now contends on appeal the burden was not satisfied because the State did not introduce the terms and conditions. The argument was not properly preserved for appeal.
In moving to dismiss, Justus argued: "Judge, we just move to dismiss, argue the State's not made a prima facie case that he's violated terms and conditions of his suspended sentence." The trial court denied the motion. Although Justus argues in this appeal that the State did not meet its burden because it did not present evidence of the terms and conditions of his suspended sentence, this is not what he argued below. The argument he raises here is a procedural argument rather than a sufficiency challenge, and it must be raised at trial in order to preserve the argument for appeal. See, e.g. , Myers v. State , 2014 Ark. App. 720, 451 S.W.3d 588 ; Whitener v. State , 96 Ark. App. 354, 241 S.W.3d 779 (2006).
In Whitener, supra , our court was presented with the contention that the trial court had no legal basis for finding a violation of probation because the terms and conditions of the defendant's probation were not entered into evidence at the revocation hearing. Our court rejected the argument, explaining in part, "Appellant's argument that the terms and conditions of probation were not introduced into evidence amounts to a procedural objection, and appellant did not raise this issue at the revocation hearing. This court will not consider issues raised for the first time on appeal." 96 Ark. App. at 357, 241 S.W.3d at 782. Similarly, in Myers v. State, supra , our court explained:
This court, however, has held that an argument that the State failed to introduce a copy of the terms and conditions of a suspended sentence is a procedural objection that must be raised before the circuit court. Myers never objected to the State's failure to introduce the terms and conditions of his suspended sentence.
Under Cotta and Whitener , therefore, Myers's first two arguments are not preserved for appeal.
2014 Ark. App. 720 at 3, 451 S.W.3d 588, 590 (citations omitted).
Accordingly, Justus did not preserve the issue he wishes to argue on appeal, and therefore we affirm the trial court's revocation without addressing the merits of his argument.
Affirmed.
Gladwin and Vaught, JJ., agree. | [
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RAYMOND R. ABRAMSON, Judge
This appeal arises from the summary dismissal by the Circuit Court of Garland County of appellants' (collectively known as "Opponents of Ordinance 6121") challenge to an ordinance passed by the City of Hot Springs, Arkansas ("the City"), that annexed to the City an unincorporated area of Garland County known as the Enclave Study Area B ("Enclave B"). On appeal, appellants argue that the circuit court erred in finding that the City had complied with the statutory requirements for annexation of Enclave B, that the annexation procedure was in violation of the Equal Protection Clause of the Fourteenth Amendment, and the annexation procedure was unconstitutional under the Arkansas Constitution. For the following reasons, we affirm.
The statutory basis for the City's annexation of Enclave B is contained in Arkansas Code Annotated sections 14-40-302 and 14-40-501 to -503. On November 17, 2015, the City's board of directors passed Hot Springs Resolution No. 8793 ("Resolution 8793"), fixing a time and date for a public hearing to annex Enclave B. In December 2015, all known property owners of Enclave B were notified by certified mail of the City's intent to annex Enclave B and informed of their rights related thereto. Also in December, a legal notice was published in a newspaper with circulation in Garland County setting out the legal description of Enclave B and announcing that it was the intention of the City to annex Enclave B.
The City held a public hearing on January 5, 2016, to consider whether an ordinance should be passed to annex Enclave B into the City pursuant to Resolution 8793. On January 19, 2016, the City board of directors voted to adopt Hot Springs Ordinance No. 6121 ("Ordinance 6121"), annexing Enclave B into the City. Appellants, who are landowners in Enclave B opposed to the annexation, brought suit challenging the annexation on several grounds. First, the appellants sought a declaration that the City did not comply with the statutory requirements for such an annexation, thereby making Ordinance 6121 void. Second, appellants' complaint sought a declaration that the annexation procedure set forth in Arkansas Code Annotated sections 14-40-501 to -504 (collectively "the Annexation Procedure") violates the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. Last, appellants argue that the annexation procedure violates the Arkansas Constitution by infringing on appellants' rights to representation and to vote. The original complaint in this action was filed pro se. When the City filed a motion for declaratory judgment and motion for summary judgment, appellants retained counsel. Thereafter, appellants filed an amended and supplemental class-action complaint for declaratory judgment ("the amended complaint"), which essentially sought the same relief as the original complaint but also sought class certification on behalf of all persons residing in Enclave B. The City then filed an answer to the amended complaint and renewed its motion for declaratory judgment and motion for summary judgment. These motions were fully briefed, and on November 2, 2016, appellants filed their own motion for summary judgment asserting entitlement to judgment as a matter of law on their claims that the City failed to comply with the statutory requirements in its passage of Ordinance 6121, thereby seeking a summary determination that Ordinance 6121 was void. A hearing was held on the pending motions on December 13, 2016, in the Garland County Circuit Court. After conducting the hearing and reviewing the pleadings, the circuit court granted the City's motion and denied the appellants' motion, thereby dismissing the appellants' amended complaint with prejudice. This appeal follows.
On appeal, appellants argue the circuit court erred in summarily finding that the City had complied with the statutory requirements for annexation of Enclave B and in denying appellants' motion for summary judgment on those grounds. Appellants also argue the annexation procedure is unconstitutional under the United States Constitution because it violates the Equal Protection Clause of the Fourteenth Amendment and further that it is unconstitutional under the equality sections of the Arkansas Constitution. Because we do not believe the circuit court's grant of summary judgment was in error, we affirm.
First, appellants argue that the circuit court erred in finding that the City had complied with the statutory requirements for annexation of Enclave B. The City contacted and coordinated with the Arkansas Geographic Information Systems ("GIS") office before undertaking the annexation of Enclave B as required by Arkansas Code Annotated section 14-40-101. Appellants attempt to redefine "undertake," but it is clear from our review of the record that the undertaking of the annexation of Enclave B had not occurred by the time the City contacted GIS. Shelby Johnson, an employee of GIS, agreed. According to his affidavit, "[T]he City of Hot Springs coordinated with the Geographic Information Systems Officer regarding the preparation of legal descriptions and digital mapping for the annexation, more fully described in Hot Springs Ordinance 6121, in accordance with [the statute.]"
While the appellants assert that the annexation was undertaken at the moment the City passed Ordinance 6121, the fact is that when the City contacted GIS-48 hours after the passage of Ordinance 6121-the ordinance was not yet valid; the referendum period had not yet expired; and the effective date of the ordinance was still over two months away.
The City was still two months away from providing services to the area to be annexed. The City argues that to assert that the undertaking occurred two months before the City would have even begun providing services to the annexed area is akin to saying a trip begins when you start to pack your bags. We agree. The passage of Ordinance 6121 was merely preparation for the undertaking of the annexation, which could only occur when the City performed the tangible actions of the annexation, i.e. providing police, fire, and wastewater services to the residents of Enclave B.
In making their claim, the appellants rely almost entirely on the definition of "undertake" found in a Merriam-Webster dictionary (defined as "to begin or attempt [something]"). This definition, appellants contend, means that passing Ordinance 6121 amounts to "undertaking," and because GIS was contacted after passage, then the annexation of Enclave B is void. The appellants, however, have no legal basis to conclude that "undertaking" of an annexation begins with the passage of an ordinance and no basis to contend that voiding the ordinance is the appropriate remedy even if it does.
As mentioned above, when the City contacted GIS 48 hours after Ordinance 6121's passage, the ordinance was not yet valid, and would not be until January 24, 2016-the day the City published the ordinance and three days after it had contacted GIS. Until such publication, Ordinance 6121 would not be valid-"the ordinance never had life breathed into it." See City of Fort Smith v. O.K. Foods, Inc. , 293 Ark. 379, 381, 738 S.W.2d 96, 99 (1987). We agree with the City that it is important to note that Ordinance 6121 was not even valid until days after the City contacted GIS. Even if Ordinance 6121 amounted to the City's undertaking the annexation of Enclave B, the ordinance does nothing and is invalid before its post-enactment publication. Accordingly, we hold that contacting GIS within 48 hours of Ordinance 6121's passage is in accordance with the statute.
Appellants also argue that the Annexation Procedure unconstitutionally violates the Equal Protection Clause of the Fourteenth Amendment by denying the right to vote to those who reside in the area to be annexed. This argument is wholly without merit. The City did not fail to allow affected property owners a chance to be heard before the passage of Ordinance 6121.
The statute at issue, Arkansas Code Annotated section 14-40-502, requires that the City hold a public hearing. It does not require that every person who wishes to speak be allowed to do so, no matter the circumstances. In the instant case, all who wished to speak were allowed to sign up to do so, and those who signed up were allowed to speak even though the statute does not create an affirmative duty for the City to allow everyone to do so. As the City argues, there is certainly no affirmative duty if allowing people to speak would otherwise violate the law or amount to safety issues, as it did here. Moreover, it is undisputed that the City employed a simple sign-up process to ensure that those who wished to speak were allowed to do so. The City has no responsibility or duty to force people to sign up and speak.
The appellants also take issue with the City's actions to comply with the maximum-occupant load at the board meeting on January 5, 2016. They claim that this violated Arkansas Code Annotated section 14-40-502(b), which provides,
at least fifteen (15) days prior to the date of the public hearing, the governing body of the municipality shall publish a legal notice setting out the legal description of the territory proposed to be annexed and notify by certified mail all the property owners within the area proposed to be annexed of their right to appear at the public hearing to present their views on the proposed annexation.
Ark. Code Ann. § 14-40-502(b).
Appellants do not dispute the fact that all notices of the hearing were sent as required by the statute. Furthermore, they do not contest the fact that sign-up pages for those who wished to speak were available and were executed by those for and against the ordinance and that these pages were completed for both the January 5 and January 19, 2016 meetings. The appellants also do not dispute the fact that all the people who signed up on both sides of the issue were given a chance to speak. There is no dispute that the crowd exceeded the lawful limits of the hearing room and the excess number were asked to stand outside the meeting room, with the door to the meeting room open, by Ed Davis, the City Fire Chief. The appellants argue that they were deprived of a right to be heard on an issue; however, there is little evidence before us to suggest that there was an actual aggrieved party, as no one complained that he or she wanted to speak but was not allowed to do so. Due process generally requires that a person receive notice of proceedings and a reasonable opportunity to be heard on the issue. See Davis v. Schimmel , 252 Ark. 1201, 1207-8, 482 S.W.2d 785, 789 (1972). Here, no one disputes that everyone received the required notice, and no one disputes that those who wished to speak could have signed up to do so or that those who signed up were allowed to speak. We hold that the appellants were entitled to a reasonable opportunity to be heard and that they were given that reasonable opportunity.
Appellants' next argument, that the annexation procedure was in violation of the Equal Protection Clause of the Fourteenth Amendment, has been decided by our supreme court in Pritchett v. City of Hot Springs , 2017 Ark. 95, 514 S.W.3d 447. There, property owners in Enclave B "sued the City arguing that the statutory scheme authorizing the annexation was unconstitutional." Id. at 1, 514 S.W.3d at 449. Our high court rejected that argument and affirmed the circuit court's dismissal of the property owners' claim.
Now, different residents of Enclave B bring this appeal challenging the constitutionality of the statutory annexation scheme. The geographic area is the same; the annexation is the same; the law is the same; and the claim of unconstitutionality is the same. Because this argument has been decided by our supreme court, we can dispose of this point quickly, and we affirm the lower court's ruling finding that the statutory scheme at issue is not unconstitutional.
Appellants' final argument is that the annexation procedure is unconstitutional under the equality sections of the Arkansas Constitution. The City responds that this is basically a rehash of the previous argument, using different words. Appellants attempt to impose the strict-scrutiny analysis on the statutory scheme at issue. However, as with their previous argument, this point has already been decided by the Arkansas Supreme Court. The Pritchett court held, "Because no fundamental right is at stake here, the State is not required to prove a compelling state interest." 2017 Ark. 95, at 3-4, 514 S.W.3d 447, 450(citing Jegley v. Picado , 349 Ark. 600, 632, 80 S.W.3d 332, 350 (2002) ("When a statute infringes upon a fundamental right, it cannot survive unless a compelling state interest is advanced by the statute and the statute is the least restrictive method available to carry out the state interest.")). "Thus, the applicable standard is rational-basis review." Id. (citing Arnold v. State , 2011 Ark. 395, at 8, 384 S.W.3d 488, 495 (noting that rational-basis review applies unless the "statute impinges on a fundamental right or is based on a suspect criterion")). Like the appellants in Pritchett , the appellants here have not "asserted that the statute lacks a rational-basis." Id. Therefore, we affirm the circuit court's decision that the statutory scheme is constitutional.
Affirmed.
Glover and Murphy, JJ., agree. | [
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PHILLIP T. WHITEAKER, Judge
Misty Gonzalez appeals the decision of the Poinsett County Circuit Court terminating her parental rights to her three children: S.A. (born July 13, 2002), R.G. (born November 16, 2007), and L.G. (born December 8, 2009). On appeal, Gonzalez argues that the circuit court erred in finding that the Arkansas Department of Human Services (DHS) proved the statutory grounds necessary for terminating her parental rights; additionally, she argues that the circuit court erred in finding that termination was in the children's best interest. We affirm.
I. Procedural History
DHS has an extensive history with Gonzalez and her family. In February 2015, DHS investigated unsubstantiated allegations of physical abuse made against Gonzalez's husband, Richard Gonzalez. In December 2015, DHS investigated substantiated allegations of cuts, welts, bruises, striking a child, threat of harm, failure to protect, and environmental neglect, and it opened a protective-services case at that time.
In March 2016, DHS investigated a hotline report of substance misuse, failure to protect, environmental neglect, and medical neglect. DHS contacted Gonzalez, who initially resisted a drug screen but ultimately tested positive for methamphetamine, amphetamine, THC, and MDMA. In addition, her home was piled with clothing; there were holes in the floor, a dog and its feces in a kennel in the bedroom, and the odor of marijuana in the home. DHS exercised a seventy-two-hour hold on the children and filed a petition for emergency custody and dependency-neglect.
The circuit court adjudicated the children dependent-neglected on May 26, 2016, finding that they were subjected to parental unfitness as a result of Gonzalez's drug use. The court established the goal of the case as reunification, with a concurrent goal of relative placement, permanency, and adoption. Gonzalez was ordered, among other things, to cooperate with DHS, comply with the case plan, and obey all orders of the court; remain drug free and submit to random drug screens; participate in and complete parenting classes; obtain and maintain clean, safe, and stable housing; obtain and maintain stable employment or provide sufficient income to support the family; and provide DHS with a budget indicating sufficient income or resources to meet the family's needs.
After adjudication, the court held review hearings in September and December 2016. At both review hearings, the court found that return of the children to Gonzalez's custody was contrary to the children's welfare and that DHS had made reasonable efforts to provide family services. The court also found that Gonzalez had complied with some aspects of the case plan, noting that she had remained drug free and had completed a drug-and-alcohol assessment. Nonetheless, the circuit court ultimately found that Gonzalez had still not obtained and maintained stable housing or employment, nor had she cooperated with DHS and complied with the case plan and court orders.
Despite these findings, in June 2017, the court authorized a trial home placement with Gonzalez. This arrangement was short-lived, however. By the time of the fifteen-month review hearing in September 2017, the circuit court determined that the goal of the case should be adoption. Specifically, the court found that Gonzalez had partially complied with the case plan by remaining drug free and completing outpatient therapy, but she still had not obtained stable housing, employment, or transportation. The court once more ordered Gonzalez to achieve these things and authorized DHS to file a petition for termination of parental rights.
DHS filed its termination petition in October 2017, alleging two grounds: (1) the "subsequent factors" ground in Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) (Supp. 2017), and (2) the "aggravated circumstances" ground in section 9-27-341(b)(e)(B)(ix)(a) . For the subsequent-factors ground, DHS alleged that since the original petition was filed in March 2016, Gonzalez had been jobless, did not have stable transportation, and had a failed trial home placement, which ended when Gonzalez became homeless. In support of the aggravated-circumstances ground, DHS alleged that there was little likelihood that additional services to the family would result in successful reunification, pointing to the numerous services provided to Gonzalez throughout the case, her inability to have the stability of housing, employment, or transportation necessary to care for her children, and her noncompliance with court orders.
After a hearing on the petition in December 2017, the circuit court entered an order terminating Gonzalez's parental rights, finding that DHS had proved both statutory grounds and that the termination was in the best interest of the children. Gonzalez timely appealed the circuit court's order. She challenges the circuit court's finding that DHS proved both statutory grounds alleged in the termination petition; additionally, she challenges the potential-harm prong of the circuit court's best-interest finding. She does not specifically challenge the circuit court's findings regarding the adoptability of the children.
II. Standard of Review
On appeal, we review termination-of-parental-rights cases de novo but will not reverse the circuit court's ruling unless its findings are clearly erroneous. Dade v. Ark. Dep't of HumanServs. , 2016 Ark. App. 443, 503 S.W.3d 96. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. In determining whether a finding is clearly erroneous, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge's personal observations. Jackson v. Ark. Dep't of Human Servs. , 2016 Ark. App. 440, 503 S.W.3d 122.
Our case law recognizes that the termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Fox v. Ark. Dep't of Human Servs. , 2014 Ark. App. 666, 448 S.W.3d 735. In termination-of-parental-rights matters, the circuit court is required to follow a two-step process by finding first that the parent is unfit and second that termination is in the best interest of the child. T.J. v. Ark. Dep't of Human Servs. , 329 Ark. 243, 947 S.W.2d 761 (1997) ; Smith v. Ark. Dep't of Human Servs. , 2013 Ark. App. 753, 431 S.W.3d 364. The first step requires proof of one or more of the statutory grounds for termination. Ark. Code Ann. § 9-27-341(b)(3)(B). The second step requires consideration of whether the termination of parental rights is in the children's best interest. Ark. Code Ann. § 9-27-341(b)(3)(A). As a result, DHS bears a heavy burden in seeking to terminate the relationship of parent and child. Fox, supra.
III. Statutory Grounds
In her first point on appeal, Gonzalez contends that the circuit court erred in determining that DHS offered sufficient proof on the subsequent-factors ground. The subsequent-factors ground is set forth in Arkansas Code Annotated section 9-27-341(b)(3)(B)(vii)(a) . This statute provides that termination may be had on a finding that
other factors or issues arose subsequent to the filing of the original petition for dependency-neglect that demonstrate that placement of the juvenile in the custody of the parent is contrary to the juvenile's health, safety, or welfare and that, despite the offer of appropriate family services , the parent has manifested the incapacity or indifference to remedy the subsequent issues or factors or rehabilitate the parent's circumstances that prevent the placement of the juvenile in the custody of the parent.
(Emphasis added.) Gonzalez asserts that this ground "has a specific services element that requires DHS to offer proof that it provided appropriate services to assist the parent in remedying the issues that arose subsequent to the filing of the original petition." She maintains that DHS failed to prove that it provided appropriate services, and therefore, the circuit court erred in finding sufficient proof in support of this ground.
The circuit court found that DHS had proved the subsequent-factors ground, determining that issues of homelessness, lack of employment, and lack of transportation arose subsequent to the filing of the petition. Specifically, the court found that Gonzalez had been homeless, jobless, and without transportation after the original petition had been filed in March 2016, despite court orders for services. The court concluded that DHS had provided appropriate family services to Gonzalez and that she manifested the incapacity or indifference to remedy the subsequent issues or factors, despite DHS's provision of services to meet these issues.
Gonzalez argues that she complied with the court's orders to obtain housing, employment, and transportation. She points to her testimony that at the time of the termination hearing, she was living in a one-bedroom apartment, was employed, and had a van for purposes of transportation. She complains that she did all of these things without DHS's assistance and that the court erred in finding to the contrary. We disagree.
The court heard testimony that DHS had provided services to Gonzalez to help remedy the issues of housing, employment, and transportation, including, among other things, gas cards, transportation for the children and parents, medical care for the children, foster-care placement for the children, and monthly home visits. Despite these services, Gonzalez was unable to remedy these issues.
With respect to her housing issues, Gonzalez stayed with friends and boyfriends from the onset of the case and never had proof of her own housing until the last minute. Gonzalez had obtained housing when the children were put in the trial home placement, but the house belonged to Gonzalez's boyfriend, and when they broke up, Gonzalez became homeless again. After the trial placement ended and the children were taken back into care, Gonzalez was admittedly accepted into a one-bedroom Housing and Urban Development (HUD) apartment, but this was in November 2017-right before the termination hearing. The court also heard testimony that there was no food in the home, no furniture in the home other than a blow-up mattress, and that the home was "not suitable" for the children.
Concerning employment and income, Gonzalez acknowledged that she had been without a job for almost two years before termination, despite the longstanding court order for her to obtain and maintain employment. Gonzalez did gain employment the month before the hearing, but she provided DHS with only one pay stub. Moreover, Gonzalez's schedule had her working from around six or seven p.m. until two a.m. each night, and she did not have anyone-or at least did not provide any information about anyone-who would watch the children at night.
Finally, with respect to Gonzalez's transportation, she reported having obtained a van within the last month before termination. However, although she testified that she owned the van and had insurance on it, she offered no documentary evidence to support her assertion.
We cannot conclude that the circuit court's findings are clearly erroneous. In the instant case, there was ample evidence of Gonzalez's instability throughout the proceedings. There was also testimony that there were no other services that DHS could provide to Gonzalez that would resolve her issues. The circuit court did not clearly err in finding that the services provided by DHS-transportation, visitation, case management, and home visits-had not resolved the underlying problem of Gonzalez's instability.
In reaching this conclusion, we recognize Gonzalez's argument that the only outstanding issues noted by DHS concerning her remedying the subsequent factors were her lack of furniture and a concern about her ability to provide food. Because DHS "did nothing to address the sole outstanding concern of furniture by either offering cash assistance or assistance in finding donations for furniture," she contends that DHS failed to offer appropriate services to address the remaining issue of furniture.
We disagree that the "sole outstanding concern" was Gonzalez's lack of furniture. The circuit court expressly found that Gonzalez's most significant problem was her lack of stability throughout the case and her inability, until the last moment, to obtain housing, employment, and transportation, despite being ordered to do so throughout the duration of the case. This court has held, with respect to the subsequent-factors ground, that a parent's failure to comply with court orders can serve as a subsequent factor upon which termination can be based. Brown v. Ark. Dep't of Human Servs. , 2018 Ark. App. 104, at 14, 542 S.W.3d 899, 907 (citing Miller v. Ark. Dep't of Human Servs. , 2017 Ark. App. 396, 525 S.W.3d 48 ). In Brown , the parent had been ordered to obtain and maintain stable housing and employment but failed to do so. This court held that this failure was a sufficient factual basis for the circuit court's findings on the subsequent-factors ground.
Likewise, in Garlington v. Arkansas Department of Human Services , 2018 Ark. App. 124, 542 S.W.3d 917, we held that the mother's last-minute attempts at compliance with the court's orders were insufficient to avoid termination, even though she had made improvements in her attempts to find housing, because she was still unable to have her children safely returned to her by the time of the termination hearing. There, we wrote as follows:
In Trout v. Arkansas Department of Human Services , 84 Ark. App. 446, 146 S.W.3d 895 (2004), we affirmed the circuit court's termination of the parental rights of a mother because she had not been stable for a sufficient amount of time to indicate reunification was possible. We held that to give the mother more time to comply would only ignore the fact that she had consistently failed to comply with the court's order. Id. In Camarillo-Cox v. Arkansas Department of Human Services , 360 Ark. 340, 201 S.W.3d 391 (2005), our supreme court affirmed a circuit court's termination although the mother had shown significant improvement and had eventually met nearly all the case-plan requirements, because those improvements were not made until the "eleventh hour" of the case. "[E]vidence that a parent begins to make improvement as termination becomes more imminent will not outweigh other evidence demonstrating a failure to comply and to remedy the situation that caused the children to be removed in the first place." Id. at 355, 201 S.W.3d at 401.
Garlington , 2018 Ark. App. 124, at 8, 542 S.W.3d at 921.
Finally, in Tatum v. Arkansas Department of Human Services , 2017 Ark. App. 674, 536 S.W.3d 178, we affirmed the termination of a mother's parental rights on the subsequent-factors ground, despite her argument that DHS had not provided appropriate family services to her. Evidence in that case demonstrated that DHS had provided the mother with a psychological evaluation, two drug-and-alcohol assessments, transportation, a housing referral, and a financial-assistance referral. Despite those services, the mother had not complied with the court's orders to maintain stability in her housing, employment, and transportation. In affirming the termination, this court held that "there can be no meritorious challenge to the subsequent-factors ground when there was evidence of appellant's lack of compliance with the case plan and court orders." Id. at 6, 536 S.W.3d at 182.
We agree with the circuit court that Gonzalez complied with the case plan only at the last minute. This court has repeatedly held that the children's "need for permanency and stability will override [a parent's] eleventh-hour efforts." Burleson v. Ark. Dep't of Human Servs. , 2017 Ark. App. 616, at 8, 535 S.W.3d 655, 659 ; see also Sharks v. Ark. Dep't of Human Servs. , 2016 Ark. App. 435, at 13, 502 S.W.3d 569, 578 (noting that while there was evidence that parent was complying with the case plan, the court did not have to ignore that his compliance did not begin until the eleventh hour). We therefore conclude the circuit court correctly found that DHS proved the subsequent-factors ground. We can affirm termination when only one ground has been proved, see, e.g. , Lowery v. Ark. Dep't of Human Servs. , 2012 Ark. App. 478, 2012 WL 4009601 ; therefore, we affirm on this point.
IV. Best Interest
In her second point on appeal, Gonzalez challenges the circuit court's finding that termination was in the children's best interest. She does not challenge the court's adoptability finding, however, so we address only the potential-harm prong of this finding.
In considering potential harm caused by returning the child to the parent, the circuit court is not required to find that actual harm would result or affirmatively identify a potential harm. Gulley v. Ark. Dep't of Human Servs. , 2016 Ark. App. 367, 498 S.W.3d 754 ; Welch v. Ark. Dep't of Human Servs. , 2010 Ark. App. 798, 378 S.W.3d 290. Potential harm must be viewed in a forward-looking manner and in broad terms, including the harm the child suffers from the lack of stability the child receives in a permanent home. McNeer v. Ark. Dep't of Human Servs. , 2017 Ark. App. 512, 529 S.W.3d 269 ; Collins v. Ark. Dep't of Human Servs. , 2013 Ark. App. 90, 2013 WL 546940.
On this issue, as noted above, the circuit court found that Gonzalez's persistent lack of stability was indicative of the risk of potential harm. We agree. We have noted that a court may consider past behavior as a predictor of likely potential harm should the child be returned to the parent's care and custody. See Furnish v. Ark. Dep't of Human Servs. , 2017 Ark. App. 511, at 14, 529 S.W.3d 684, 692. We have also held that a parent's failure to comply with court orders itself is sufficient evidence of potential harm, see Bell v. Ark. Dep't of Human Servs. , 2016 Ark. App. 446, at 12, 503 S.W.3d 112, 119, and that a failed trial home placement may be considered evidence of potential harm. See Robinson v. Ark. Dep't of Human Servs. , 2016 Ark. App. 53, at 7, 481 S.W.3d 474, 479.
Each of these considerations was present in this case. As to Gonzalez's past behavior, she admitted that she was unemployed for years before termination, and she had not been able to maintain stable housing throughout the case. She failed to comply with the case plan until the last minute, and the trial home placement failed because of her inability to provide her children with a safe and stable place to live. We therefore cannot say that the circuit court's potential-harm finding was clearly erroneous.
Affirmed.
Gruber, C.J., and Brown, J., agree.
The circuit court also terminated Richard Gonzalez's parental rights in this case, but he did not appeal and is not a party to the present appeal.
Garlington involved the twelve-month failure to remedy ground, see Ark. Code Ann. § 9-27-341(b)(3)(b)(i)(a) , rather than the subsequent-factors ground, but in that case as here, the mother argued that DHS failed to provide appropriate family services. | [
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