Chapter 20 Dependency/neglect Appeals
Library | Handling Appeals in Arkansas (2021 Ed.) |
A. Introduction
Dependency/Neglect appeals are a special breed.1 They are governed primarily by a set of rules that diverge considerably from all other appellate-practice rules. And while technically the appeals are civil in nature, the litigants are afforded many of the same rights and protections as criminal defendants. Also, although a DN case spans many months, and sometimes years, and involves a series of various types of hearings that build on one another, only certain hearings can be appealed, with limits on the appeal record and the issues that can be pursued. As a result, there are many procedural and substantive hazards that can ensnare the unsuspecting or unprepared attorney. Indeed, this area of practice is so specialized that attorneys representing children and parents through state contracts or appointments (as opposed to being hired privately), must first qualify through the Administrative Office of the Courts by undergoing extended training, much like attorneys representing indigent criminal defendants charged with crimes carrying the death penalty.2
This chapter highlights many of the pitfalls attorneys face in DN appeals. It identifies DN rules that diverge from the "usual" civil rules, and which rules otherwise coalesce with them. The chapter also highlights certain substantive issues, including historical interpretations by the appellate courts of certain provisions of the Juvenile Code, and trends and variances in the appellate courts' decisions.
B. What are the Rules?
Two sets of rules govern every DN appeal: the ARAP-Civ and ASCR 6-9 and 6-10; the latter rules were adopted in 2006 to expedite permanency for the children who are the subjects of these cases. One pitfall in DN appellate practice is looking to the wrong rules for guidance. ASCR 6-9 and 6-10 control almost all procedural issues regarding perfection of the appeal. When those rules are silent, or do not conflict with ARAP-Civ, look to ARAP-Civ for your answers — at least in most cases.
There are issues ASCR 6-9 is silent on but for which the appellate courts have engineered an acceptable practice not found in ARAP-Civ. These practices can only be learned by mistake, extraordinary due diligence, or by referencing an instructional source, like this handbook. This means you must become familiar with ASCR 6-9 and 6-10 and review the material in this chapter. Do not rely solely on a phone call to the Supreme Court Clerk's office for answers to your DN appellate questions. Further, if docketing information conflicts with what you know to be true under ASCR 6-9 and 6-10 (for example, due dates for filings), you are the one responsible for complying with the rule.
Rules 6-9 and 6-10 are not set out verbatim in this chapter; a current copy of them can be found on the Arkansas Judiciary website. Instead, the rules are broken down here into manageable and instructive headings with detailed explanations.
1. What is Appealable and When: Final Judgments and Interlocutory Appeals
For a general discussion of finaljudgments, appealable orders, and interlocutory appeals, see Chapter 2. Know that this is one area of the law where DN appellate practice greatly diverges from that of standard appellate practice.
DN proceedings can consist of multiple hearings — probable cause, adjudication, review, no-reunification, permanency-planning, and termination. "All of these hearings build on one another, and the findings of previous hearings are elements of subsequent hearings." Neves da Rocha v. Arkansas Dep't of Human Servs., 93 Ark. App. 386, 393, 219 S.W.3d 660, 664 (2005). The drawn-out process of DN litigation can cause confusion regarding what orders are and are not appealable.
(a) Final and Appealable Orders
The following are recognized by ASCR 6-9(a) or through DN case law as being final and appealable orders:
• Adjudication orders
• Termination-of-parental-rights orders
• Orders denying appointed counsel under ACA § 9-27-316(h)
• Orders denying a motion to intervene
• Final orders awarding permanent custody. ARAP-Civ 2(d); West v. Arkansas Dep't of Human Servs., 373 Ark. 100, 104, 281 S.W.3d 733, 736 (2008); Keckler v. Arkansas Dep't of Human Servs., 2011 Ark. App. 375, at 6-7, 383 S.W.3d 912, 915.
• Disposition, review, no-reunification, and permanency-planning orders that are certified as final under ARCP 54(b) (see Part B(1)(b), Interlocutory Orders).
Orders from an adoption proceeding occurring within a DN proceeding are appealable if the order is final under ARAP-Civ 2. See Cowan v. Arkansas Dep't of Human Servs., 2012 Ark. App. 576, at 15, 424 S.W.3d 318, 327-28.
(b) Interlocutory Orders
The following are not recognized in ASCR 6-9 or cases as final and appealable orders:
• Probable cause orders. Stoliker v. Arkansas Dep't of Human Servs., 2012 Ark. App. 415, at 9, 422 S.W.3d 123, 128; Taylor v. Arkansas Dep't of Human Servs., 2010 Ark. App. 725, at 2; but see Arkansas Dep't of Health & Human Servs. v. Jones, 97 Ark. App. 267, 248 S.W.3d 507 (permitting an appeal from a probable cause hearing where the order granting permanent custody and closing the case was final).
• Temporary custody orders. ARAP-Civ. 2; see generally, Stoliker, 2012 Ark. App. 415, at 9, 422 S.W.3d at 128; Taylor, 2010 Ark. App. 725, at 2.
As Chapter 2 discusses, interim orders that are not usually appealable may be reviewed by an appellate court at an interlocutory stage under ARCP 54(b). Both appellate and trial counsel must be aware, furthermore, that in DN cases, where circuit courts typically enter several interim orders during the case (for example, review and permanency-planning orders), the appellate court may rule that appeals of certain interim findings are waived if the litigant waits to appeal until a final order is entered (usually when the case concludes).
While an adjudication order is final and appealable, appellate courts have not permitted appellants to raise prior dispositional or aggravated-circumstances findings for the first time in an adjudication appeal. Stoliker, 2012 Ark. App. 415, 422 S.W.3d 123; Taylor, 2010 Ark. App. 725. Thus, appellants who wish to appeal dispositional or aggravated-circumstances findings made before adjudication should seek immediate Rule 54(b) certification when the circuit court makes those findings.
Note also that the Court of Appeals has twice ruled that an interim order, such as a permanency-planning order, could be appealed with a termination-of-parental-rights order (which is final and appealable), as long as the notice of appeal from the termination order designates the interim order being appealed, as well as the transcript of the proceedings that resulted in that interim order. See Velazquez v. Arkansas Dep't of Human Servs., 2011 Ark. App 168, at 5; see also Bryant v. Arkansas Dep't of Human Servs., 2011 Ark. App. 390, at 7, 383 S.W.3d 901, 904.
Generally, the appellate court will not review adverse rulings from prior hearings that were not appealed. See Hannah v. Arkansas Dep't of Human Servs., 2013 Ark. App. 502, at 4-5; Krass v. Arkansas Dep't of Human Servs., 2009 Ark. App. 245, at 6, 306 S.W.3d 14, 17; Lewis v. Arkansas Dep't of Human Servs., 364 Ark. 243, 251, 217 S.W.3d 788, 793 (2005). An appeal must be taken from the hearing from which the finding of abuse or aggravated circumstances was made. Hannah, 2013 Ark. App. 502, at 4; see also, Velazquez, 2011 Ark. App. 168, at 5. The Arkansas Court of Appeals, however, in Henson v. Arkansas Dep't of Human Servs., 2014 Ark. App. 225, at 4-5, 434 S.W.3d 371, 374, departed from its prior precedent when it found that the appellants' arguments attacking the prior aggravated-circumstances finding were not procedurally barred. In Henson, the appellate court did not mention its long precedent of declining to address findings made from a prior hearing, particularly where there was no record on appeal from the hearing where the underlying finding was made; rather, the Henson court relied on Schubert v. Arkansas Dep't of Human Servs., 2009 Ark. 596, at 5, 357 S.W.3d 458, 461, to say that not every order under ASCR 6-9 is final and appealable. Because every order cannot be appealed and there was no Rule 54(b) certification on the order being attacked, the appellate court permitted the argument on appeal in Henson.
Likewise, if a parent does not timely appeal a circuit court's finding that DHS has provided reasonable reunification services, even if that finding was made in an interim order that would require 54(b) certification, then those findings cannot be challenged later. Frederick v. Arkansas Dep't of Human Servs., 2010 Ark. App. 104, at 10-11, 377 S.W.3d 306, 311-12; Moore v. Arkansas Dep't of Human Servs, 69 Ark. App. 1, at 4, 9 S.W.3d 531, 533 (2000). But just as it did in Henson, the appellate court in Jackson v. Arkansas Dep't of Human Servs., 2013 Ark. App. 411, 429 S.W.3d 276, departed from its prior precedent prohibiting a challenge to prior unappealed findings, and reversed, in part, on the argument that DHS failed to sufficiently provide services to the appellant.
(c) A Special Note About Adjudication Appeals
An order adjudicating a child DN is not only final and appealable, as explained in Part B(1)(a) above, but it conclusively establishes that dependency, neglect, or both have occurred; it therefore sets the wheels in motion for your client to either achieve reunification, or risk losing the parent-child relationship — usually through a petition to terminate parental rights. It also is the point that the offending parent, step-parent, or custodian is placed on the child-maltreatment registry. A DN adjudication is the crossing of the Rubicon. Thus, the decision to appeal the substantive findings in an...
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