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Clark v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

May 25, 2016

JESSICA CLARK APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILD APPELLEES

         APPEAL FROM THE OUACHITA COUNTY CIRCUIT COURT [NO. JV-13-161] HONORABLE EDWIN KEATON, JUDGE

          Tina Bowers Lee, Arkansas Public Defender Commission, for appellant.

          Jerald A. Sharum, Office of Chief Counsel, for appellee.

          Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

          PHILLIP T. WHITEAKER, Judge

         Jessica Clark is the mother of three children: J.C., K.C., and B.W. In September 2013, the Department of Human Services (DHS) removed all three children from Clark's care in a dependency-neglect action filed in the Ouachita County Circuit Court. DHS named and identified Charles Weeks as the putative father of B.W. Weeks was later adjudicated the father of B.W. by the circuit court at the probable-cause hearing upon stipulation of paternity by Clark and Weeks. Eventually, the court awarded permanent custody of B.W. to Weeks.

         Clark appeals this award of custody and appears before us as the appellant. Clark raises two arguments for reversal. First, she argues that the trial court used the wrong standard to determine whether the modification of custody was appropriate. Second, in the alternative, she asserts there was insufficient evidence to support the trial court's determination that a change of custody was appropriate. Weeks does not appear before us. DHS and the attorney ad litem (AAL) are the appellees and have filed responsive briefs to Clark's appeal. They also filed a joint motion to dismiss the appeal, arguing that the appeal should be dismissed on jurisdictional grounds.

         Before we reach the merits of Clark's appeal, we must first address the jurisdictional issue raised in the appellees' joint motion to dismiss. To understand the motion, we must look to the procedural history of the circuit court's actions.

         The court received evidence concerning the custody of B.W. in separate hearings conducted in December 2014 and January 2015. The court did not rule from the bench. Instead, on January 29, 2015, the trial court issued a letter ruling granting immediate permanent custody of B.W. to Weeks and setting forth the basis for its ruling. The court directed the AAL to prepare an order consistent with the decision set forth in its letter opinion. Despite the court's direction, no order was entered at that time. On March 18, 2015, a review hearing on B.W.'s half siblings was conducted. After the review hearing, the letter ruling was subsequently filed with the court. However, a formal order incorporating the letter opinion was not entered until August 19, 2015, and indicated that it was being entered nunc pro tunc to the January 26, 2015 hearing date. Clark filed her notice of appeal the same day the formal order was entered.

         Both DHS and the AAL contend that the appeal should be dismissed because the notice of appeal was filed more than 21 days[1] after the letter opinion. In essence, they argue that the letter opinion granting custody of B.W. is the order from which the appeal must be taken. We disagree. The Arkansas Rules of Appellate Procedure–Civil direct that an appeal may be taken only from a final judgment or decree entered by the trial court. Ark. R. App. P.–Civ. 2(a)(1). We have previously held that a ruling is not the equivalent of a written order for the purpose of determining finality on appeal; neither are letter opinions that have not been incorporated into the judgment. Wilkinson v. Smith, 2012 Ark.App. 604. We hold that the letter opinion in this case did not constitute a judgment or decree. It was merely the basis for the subsequent judgment or decree. In fact, the letter opinion clearly contemplated the entry of a formal order and directed the AAL to prepare it. That was not effectuated until August 19, 2015, when the formal order was entered. Because Clark's notice of appeal was filed on the same date of entry of the formal order, the notice was timely, and the motion to dismiss is denied.

         We now turn to the merits of Clark's appeal. For her first point on appeal, Clark argues that the trial court utilized the wrong standard in awarding custody to Weeks. More specifically, Clark argues that the change-of-custody request in this case arose solely out of a dependency-neglect action and, as such, is governed by the juvenile code. Pursuant to Ark. Code Ann. § 9-27-334(a)(2)(A) (Repl. 2015), if a juvenile is found to be dependent-neglected, the circuit court may enter an order transferring custody of the juvenile to a relative or other individual if to do so is in the best interest of the juvenile. Keckler v. Ark. Dep't of Human Servs., 2011 Ark.App. 375, 383 S.W.3d 912. When a trial court decides that a change of custody should be effected under the juvenile code, the court must follow the procedures and dispositions set forth in the code. Miller v. Ark. Dep't of Human Servs., 86 Ark.App. 172, 177, 167 S.W.3d 153, 156 (2004). Here, Clark argues that the court failed to properly follow the statutory guidelines, including the requirement of a home study, for a transfer of custody under the juvenile code. Instead, she asserts that the court utilized the material-change-of -circumstances standard from domestic-relations proceedings to determine whether the modification of custody was appropriate.

         Clark's assertions hold an element of truth. Clearly, the change-of-custody request in this case arose solely out of a dependency-neglect action.[2] DHS removed B.W.[3] from Clark's care and instituted a dependency-neglect cause of action. Because this was a dependency-neglect action, the case initially progressed as such and followed the statutory guidelines set forth in the juvenile code: (1) Clark was provided parent counsel and was provided services by DHS in order to achieve an initial goal of reunification; (2) Weeks was named as a party, was provided services by DHS, but was not provided parent counsel because of his status as a noncustodial parent from whom custody had not been removed; and (3) an AAL was appointed to represent the best interest of B.W. Because this was a dependency-neglect action, Clark is correct that, when the request for a change of custody was made, the statutory guidelines and framework for such a transfer set forth in the juvenile code should have been applied. Clark is also correct that the trial court did not follow the statutory guidelines, including the requirement of a home study, for a transfer of custody under the juvenile code in awarding custody to Weeks.

         Here, the trial court clearly utilized the material-change-of-circumstances standard from domestic-relations proceedings to determine the award of custody to Weeks. The court held two evidentiary hearings before awarding custody to Weeks: a review hearing on December 14, 2014, and a continued evidentiary hearing on January 26, 2015. At the conclusion of the December 2014 review hearing, the AAL requested that Weeks be awarded custody. In response, the only objection made by Clark was that she had not been put on notice of a request for change of custody and was not prepared to put on rebuttal evidence.[4]The court then rescheduled for the continued evidentiary hearing. At the conclusion of the AAL's presentation of evidence at the January 2015 continued evidentiary hearing, Clark's attorney moved for dismissal on the basis that the AAL and Weeks had failed to show a "significant change of circumstances." The trial court denied the motion. In the order awarding custody to Weeks, the court specifically concluded "that there has been a material change in circumstances" and that "it is in the best interest" of B.W. to be placed in the custody of Weeks.

         While Clark's assertions are correct, they cannot serve as a basis for reversal. We have long held that appellants are limited by the scope and nature of the arguments and objections presented at trial. See Marlow v. United Sys. of Ark., Inc., 2013 Ark. 460. The only objection made by Clark at the December 2014 review hearing was one of notice, which the trial court attempted to address by continuing the hearing. We find no reference in the record where Clark presented to the trial court the arguments she now presents on appeal. Our court has consistently held that a party's failure to present an argument before the trial court cannot form the basis for reversal. See Keckler v. Ark. Dep't of Human Servs., supra; Broderick v. Ark. Dep't of Human Servs., 2009 Ark.App. 771, 358 S.W.3d 909; Ark. Dep't of Health & Human Servs. v. Jones, 97 Ark.App. 267, 248 S.W.3d 507 (2007). In fact, our supreme court has held that even "[d]e novo review does not mean that this court can entertain new issues on appeal when the opportunity presented itself for them to be raised below, and that opportunity was not seized." Lamontagne v. Ark. Dep't of Human Servs., 2010 Ark. 190, at 4, 366 S.W.3d at 353 (quoting Roberts v. Yang, 2010 Ark. 55, at 7, 370 S.W.3d 170, 174).

         Moreover, Clark's arguments are barred by the doctrine of invited error. The doctrine provides that a person cannot complain of an alleged erroneous action of the trial court if he himself induced such action. Peeks v. Ark. Dep't of Human Servs., 304 Ark. 172, 174, 800 S.W.2d 428, 429 (1990). Below, Clark's attorney argued to the trial court that a "significant change of circumstances" was required to effectuate a change of custody, and that the court could not consider any evidence prior to the children being returned to her at the probable-cause hearing. In fact, her entire argument in support of her directed-verdict motion focused on the sufficiency of the evidence produced as to a significant change of circumstances. She now claims on appeal that the trial court's consideration and ruling in that regard ...


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