FROM THE LOGAN COUNTY CIRCUIT COURT, SOUTHERN DISTRICT [NO.
42BJV-17-13] HONORABLE TERRY SULLIVAN, JUDGE.
Alexander Law Firm, by: Hubert W. Alexander, for appellant.
Corbyn, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
MARK KLAPPENBACH, JUDGE.
Nicholas appeals from the order of the Logan County Circuit
Court denying her petition for custody of her granddaughter,
AI, and dismissing her from the ongoing dependency-neglect
proceedings. Because the order from which Nicholas appeals is
not a final, appealable order, we must dismiss the appeal.
Department of Human Services (DHS) removed eight-month-old AI
from the custody of her mother, Chelsi Isbell, in March 2017
due to inadequate food and shelter. A dependency-neglect case
proceeded in which Nicholas, Isbell's mother, intervened
and petitioned for custody of AI. In a review order entered
in January 2018, the circuit court denied Nicholas's
petition for custody and dismissed her from the case with
prejudice. The court changed the goal of the case to
termination of parental rights and adoption. The order
included a Rule 54(b) certificate, and Nicholas appealed.
the attorney ad litem contend that Nicholas's appeal must
be dismissed because the order from which she appeals is not
final or otherwise appealable due to a deficient Rule 54(b)
certificate. Whether an order is subject to an appeal is a
jurisdictional issue that this court has the duty to raise,
even if the parties do not. Gray v. White River Health
Sys., Inc., 2016 Ark. 73, 483 S.W.3d 293.
circuit court's order denying custody is not explicitly
appealable under either Rule 2 of the Arkansas Rules of
Appellate Procedure, which governs appealable matters, or
Arkansas Supreme Court Rule 6-9, specifically addressing
appeals in dependency-neglect proceedings. Edwards v.
Ark. Dep't of Human Servs., 2015 Ark. 402, 474
S.W.3d 58. The order Nicholas appeals is not a final order
under Rule 2(a)(1) because it clearly contemplates future
action with respect to the placement of the child. See
id. Rule 2(d) specifically addresses custody orders, but
it applies only to orders awarding custody, not orders
denying custody. See id. Rule 6-9 lacks any specific
mention of an appeal from an order denying custody.
the order is not appealable outright under our rules, a
circuit court may certify an otherwise nonfinal order for an
immediate appeal by executing a certificate pursuant to Rule
54(b) of the Arkansas Rules of Civil Procedure. Pursuant to
Arkansas Rule of Civil Procedure 54(b),
[w]hen more than one claim for relief is presented in an
action, whether as a claim, counterclaim, cross-claim, or
third party claim, or when multiple parties are involved, the
court may direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties only upon an
express determination, supported by specific factual
findings, that there is no just reason for delay and upon an
express direction for the entry of judgment.
Ark. R. Civ. P. 54(b). With respect to the requirements of
Rule 54(b), the supreme court stated in Edwards that
merely tracking the language of Rule 54(b) will not suffice;
the record must show facts to support the conclusion that
there is a likelihood of hardship or injustice that would be
alleviated by an immediate appeal rather than at the
conclusion of the case. The supreme court further noted that
in addition to requiring the record to show such facts, it
had "consistently held that the rule requires the order
to include specific findings of any danger of hardship or
injustice that could be alleviated by an immediate appeal and
to set out the factual underpinnings that establish such
hardship or injustice." Edwards, 2015 Ark. 402,
at 6, 474 S.W.3d at 61 (quoting Holbrook v.
Healthport, Inc., 2013 Ark. 87, at 4).
the circuit court's Rule 54(b) certificate repeats the
court's reasons for denying Nicholas's petition for
custody, repeats its determination that the case would
proceed toward termination of parental rights and adoption
and Nicholas would be dismissed, and then tracks the language
from the rule:
Upon the basis of the foregoing factual findings, the Court
hereby certifies, in accordance with Rule 54(b)(1), Ark. R.
Civ. Pro., that it has determined that there is no just
reason for delay of the entry of a final ...