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Ponder v. Arkansas Department of Human Services

Supreme Court of Arkansas

June 16, 2016

PRISCILLA PONDER APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN, A.P., E.P., AND J.P. APPELLEES

         APPEAL FROM THE UNION COUNTY CIRCUIT COURT [NO. JV2013-340] HONORABLE EDWIN A. KEATON, JUDGE

          Suzanne Ritter Lumpkin, Arkansas Public Defender Commission, Dependency-Neglect Appellate Division, for appellant.

          Mischa K. Martin, County Legal Operations, for appellee.

          Chrestman Group, PLLC, by: Keith L. Chrestman, for A.P., E.P., and J.P.

          KAREN R. BAKER, Associate Justice

         On December 17, 2013, the appellee Arkansas Department of Human Services ("DHS") took a seventy-two-hour hold on Priscilla Ponder's children, A.P., E.P., and J.P. after the death of L.C., a sibling. Ponder is the appellant in this matter. DHS and A.P., E.P., and J.P. are joint appellees in this appeal and will be referred to collectively as "DHS." The children were removed from the home, and A.P. was placed with one set of relatives and E.P. and J.P. with another set of relatives. On May 29, 2014, the circuit court adjudicated the children dependent-neglected, and the goal was set for reunification. The circuit court conducted review hearings on June 16, August 4, and September 29, 2014. On December 1, 2014, the circuit court conducted a permanency-planning hearing and found that it was not in the best interest of the children to return to Ponder, and the goal was changed to identify permanent custodians. Also, at the permanency planning hearing, the circuit court set a review hearing to set permanent placement of the children for January 5, 2015.

         On January 9, 2015, the circuit court conducted a review hearing and granted permanent custody of the children to family members. On January 12, 2015, the circuit court entered the permanency-planning order. On January 26, 2015, the circuit court entered orders with the permanent-custody placement of the three minor children. From the permanent-custody orders, Ponder appealed to the court of appeals. On January 27, 2016, the court of appeals reversed and remanded the matter to the circuit court. Ponder v. Ark. Dep't of Human Servs., 2016 Ark.App. 61, 481 S.W.3d 785.

         On February 8, 2016, DHS filed a petition for review. On March 31, 2016, we granted DHS's petition for review and granted supplemental briefing. On April 20, 2016, Ponder filed a "Motion to Disregard DHS's Documents that Were Tendered, But Not Filed, by the Supreme Court Clerk's Office" which we took with the case. On May 19, 2016, both parties filed supplemental briefs. On appeal, Ponder presents one issue: the circuit court erred in granting permanent custody of the children to family members because the award is not supported by sufficient evidence. We have jurisdiction pursuant to Arkansas Rule of Appellate Procedure – Civil 2(d) (2016).

         This court reviews findings in dependency-neglect proceedings de novo, but we will not reverse the trial court's findings unless they are clearly erroneous. Lamontagne v. Ark. Dep't of Human Servs., 2010 Ark. 190, 366 S.W.3d 351. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Id. Furthermore, we give due deference to the trial court's superior position to determine the credibility of the witnesses and the weight to be given their testimony. However, a trial court's conclusions of law are given no deference on appeal. Stehle v. Zimmerebner, 375 Ark. 446, 456, 291 S.W.3d 573, 580 (2009).

         Turning to Ponder's sole point on appeal, pursuant to Arkansas Code Annotated section 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. Ponder argues that the circuit court erred in finding that it was in her three minor children's best interest to be placed in the permanent custody of relatives and asserts that there is insufficient evidence to support the circuit court's findings. Specifically, Ponder contends that the circuit court failed to conduct a hearing or take evidence regarding the permanent-custody placement, and the record is void of evidence to support the circuit court's placement.

         At issue are the circuit court's January 26, 2015, orders, which stated in pertinent part:

From the testimony, exhibits, statements of the parties and counsel, the record herein, and other things and matters presented, the Court, noting the best interests, welfare, health and safety, case plan[, ] and appropriate statutory placement alternatives, does hereby order . . .:
. . . .
At this time, return to the custody of the mother is contrary to the welfare of A.P. and placement in the permanent custody of . . . [the] paternal grandparents is in the best interest ...

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