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Arkansas Dep't of Human Servs. v. Waugh

Court of Appeals of Arkansas, Division II

March 4, 2015



Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellant.

Jo Carson, Attorney ad litem, for minor children.



Page 287


Appellant Arkansas Department of Human Services (DHS) appeals from the circuit court's dismissal of its petition for dependency-neglect based on a lack of subject-matter jurisdiction. DHS argues on appeal (1) that the circuit court had jurisdiction to hear the petition for dependency-neglect and (2) that the juveniles were dependent-neglected. We reverse and remand based on the circuit court's failure to properly exercise its discretion as to the issue of jurisdiction.

DHS filed a petition for dependency-neglect on April 29, 2014, alleging that appellee Shante Waugh's four children, K.W., M.C., K.C., and S.W., were dependent-neglected based on inadequate supervision. The affidavit attached to the petition stated that Waugh had been arrested on January 11, 2014, for driving while intoxicated with her children in the vehicle, driving with a suspended license, and refusal to submit to a chemical test. She was also charged with child endangerment. Waugh's sister was called by the Fort Smith Police Department to come and pick up the children at the police station, and DHS indicated that it was not notified of the incident until a referral was made by the child-abuse hotline in March 2014. DHS opened a protective services case on the family on March 12, 2014, and the caseworker subsequently attempted to contact Waugh at her residence in Fort Smith on several occasions. On March 27, 2014, the caseworker finally made contact with Waugh, who refused the offer of services to her family. The petition alleged that the children were at a substantial risk of serious harm as a result of Waugh's actions. DHS amended the petition on May 13, 2014, to add as a defendant Mackenzi Clayton, the legal/putative father of three of the children, who lived in Spiro,

Page 288

Oklahoma. DHS alleged that S.W.'s putative father was unknown.

An adjudication hearing was held on July 8, 2014, in the Sebastian County Circuit Court. Waugh testified at the hearing that she was currently living in Spiro, Oklahoma, and that she had first moved there in January 2011. However, Waugh also testified that she had a " family house" in Fort Smith and that she was " back and forth" between Spiro and Fort Smith. Waugh stated that her grandmother owned the house in Spiro and that she paid her grandmother monthly rent. According to Waugh, the home in Fort Smith was a rent-to-own option on which she also paid rent. She stated that she was employed as a CNA in Barling, Arkansas, and that she was staying at the Fort Smith residence in January 2014 when she was arrested. Waugh testified that her children had attended school in Fort Smith for the 2013--14 school year but that she had then enrolled them in school in Oklahoma in late January or early February 2014 because of problems with the Fort Smith school. Waugh stated that she was registered to vote in Oklahoma, not Arkansas. She further testified that several of her children received medication and counseling for issues such as autism, ADHD, and bipolar disorder, and that they had been receiving this treatment in Oklahoma since 2011. Waugh stated that she had an informal arrangement with the children's fathers where they had visitation with the children on certain days.

At the conclusion of the hearing, the circuit court questioned whether it had subject-matter jurisdiction to hear the dependency-neglect petition, given that Waugh and the children were now residing in Oklahoma and the children were enrolled in school there. The circuit court found that it did not have jurisdiction and entered an order dismissing the petition on July 16, 2014. In its order, the court specifically found that Waugh and the children resided in Oklahoma on April 29, 2014, at the time DHS filed its petition. The court found that " this is dispositive to the issue of subject-matter jurisdiction, though the Court does find that at the time of the incident on January 11, 2014, Shante Waugh and the juveniles were residents of Arkansas based on the evidence that the juveniles were enrolled in school in Arkansas, Shante Waugh worked in Arkansas, and Shante Waugh and the juveniles lived at 3712 Morris Drive, Fort Smith, Arkansas." The circuit court also specifically rejected the arguments against dismissal made by DHS, including that the family had subjected themselves to the jurisdiction of the court by residing in and attending school in Arkansas at the time of the incident and by owning a residence here; and that the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) provides that Arkansas is the family's home state and no other state is asserting jurisdiction over the case.

On July 17, 2014, DHS filed a motion for reconsideration of the circuit court's decision to dismiss the case. A notice of appeal was filed by DHS on July 21, 2014, and an amended notice of appeal was filed on August 13, 2014. Although a hearing on the motion for reconsideration was initially set for August 12, 2014, it was continued to August 26 so that the attorney ad litem would have an opportunity to respond. On August 22, appellees filed a response, asserting that the circuit court had lost jurisdiction to act on the motion after thirty ...

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