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Bushee v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division III

June 22, 2016

TIFFANY BUSHEE APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES and MINOR CHILD APPELLEES

         APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. JV15-9] HONORABLE STACEY ZIMMERMAN, JUDGE

          Tabitha B. McNulty, 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.

          RITA W. GRUBER, Judge

         Tiffany Bushee appeals from certain adverse findings included in a permanency-planning order entered by the Washington County Circuit Court in this dependency-neglect case. In a jointly filed brief, the Department of Human Services (DHS) and the attorney ad litem contend that, because the permanency-planning order is not a final and appealable order and because the circuit court's Rule 54(b) certificate is defective, this court has no jurisdiction to consider Ms. Bushee's appeal. We agree, and we dismiss the appeal without prejudice.

         This case began when DHS took Ms. Bushee's son, D.B. (born 4/21/14), into protective custody on January 1, 2015, in response to allegations of the mother's substance abuse and parental neglect. The circuit court adjudicated D.B. dependent-neglected on February 19, 2015, with the stated goal as reunification with Ms. Bushee. The court ordered Ms. Bushee to continue to submit to weekly drug-and-alcohol screens; to participate in individual counseling; and to maintain stable housing and employment. After the adjudication hearing, DNA testing showed Gerrod Holmes to be D.B.'s biological father. On June 10, 2015, the court granted DHS's motion to deny Mr. Holmes visitation based on Mr. Holmes's unresolved criminal charges and failure to submit to drug screens.

         In a review order entered on July 15, 2015, although the circuit court found that Ms. Bushee had attended counseling, attended AA meetings, attended visitation, maintained stable housing and employment, and completed a psychological evaluation, the court expressed concern that she continued to use illegal drugs and had not maintained her sobriety. The court also found that Mr. Holmes had not resolved his criminal fines and had tested positive for illegal drugs in May. The court continued Ms. Bushee's supervised visitation with D.B., authorized Mr. Holmes to have supervised visitation, and ordered both parents to pay child support. Then, on July 20, 2015, pursuant to the ad litem's motion for an emergency hearing, the court discontinued Ms. Bushee's visitation and ordered her to enter and complete inpatient substance-abuse treatment.

         On November 4, 2015, the court held a permanency-planning hearing in which it found that Ms. Bushee had not complied with all of the court orders and case plan, specifically noting that she had not adequately addressed the drug and alcohol issues that caused DHS to take custody of D.B. and had not paid child support. But the court continued her twice-weekly supervised visitation. The court found that Mr. Holmes was in compliance with the case plan and had paid his child support; it continued his weekly one-hour supervised visitation and added unsupervised visits every other Saturday for four hours. The court continued the goal of reunification and set a fifteen-month permanency-planning hearing for January 29, 2016. At the conclusion of the hearing, Ms. Bushee's counsel asked the court to enter a Rule 54(b) certification. The court entered a permanency-planning order with an attached 54(b) certificate on December 11, 2015. Ms. Bushee filed this appeal.

         Arkansas Supreme Court Rule 6-9 provides that the following orders may be appealed from dependency-neglect proceedings:

(A) adjudication order;
(B) disposition, review, no reunification, and permanency planning order if the court directs entry of a final judgment as to one or more of the issues or parties based upon the express determination by the court supported by factual findings that there is no just reason for delay of an appeal, in accordance with Ark. R. Civ. P. 54(b);
(C) termination of parental rights;
(D) denial of right to appointed counsel pursuant to Ark. Code Ann. ยง ...

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