FROM THE PULASKI COUNTY CIRCUIT COURT [NO. 60JV-16-279]
HONORABLE WILEY A. BRANTON, JR., JUDGE
Churchwell Law Offices, by: Joseph Churchwell, for appellant.
A. Sharum, Office of Chief Counsel, for appellee.
COURTNEY HUDSON GOODSON, ASSOCIATE JUSTICE
Dena Wilson appeals the Pulaski County Circuit Court's
order dismissing her counterclaim for declaratory and
injunctive relief against appellee Arkansas Department of
Human Services (DHS). For reversal, Wilson argues that the
circuit court lacked jurisdiction to consider the
counterclaim because DHS was entitled to sovereign immunity.
February 29, 2016, DHS petitioned the circuit court for an ex
parte order of investigation alleging that it had received a
report that Wilson had physically abused her minor child,
I.W. DHS asserted that it had a duty under the Child
Maltreatment Act to interview and examine Wilson and I.W.;
however, DHS stated that despite several attempts to
investigate the matter, Wilson and her attorney had refused
to allow DHS to enter the home or have contact with I.W.
circuit court granted the petition the same day and entered
an order requiring Wilson to permit examination of I.W. and
inspection of her home. The DHS family service worker, Mary
Hawkins, and a Maumelle police officer presented the order to
Wilson on March 12 and 14, 2016, but Wilson refused to
cooperate. DHS did not enter the home, examine I.W., or seek
further enforcement of the order.
25, 2016, Wilson filed a "Counterclaim and Third-Party
Complaint for Declaratory Judgment and Injunctive
Relief" along with a brief in support. In addition to
DHS, she named the State of Arkansas as a third-party
defendant. Wilson alleged that several provisions in the
Child Maltreatment Act permitted unreasonable searches and
seizures in violation of the Fourth, Fifth, and Fourteenth
Amendments to the United States Constitution. She further
alleged that these statutes violated her due-process rights
as well as separation-of-powers principles. She requested
declaratory and injunctive relief, both for her and on behalf
of other similarly situated individuals, and also that the
order of investigation be vacated.
moved to dismiss the counterclaim pursuant to Ark. R. Civ. P.
12(b)(6) and to vacate the order of investigation. DHS argued
that the counterclaim was procedurally improper and that
Wilson could have challenged the order by applying for a stay
pending a hearing, as is authorized under the Child
Maltreatment Act. Further, DHS asserted that it had no
intention of enforcing the order of investigation and asked
the circuit court to vacate it, contending that this action
would render the counterclaim moot. Wilson filed a response
to the motion arguing that her counterclaim was proper and
that her request for declaratory relief was not moot even if
the order of investigation was vacated.
October 28, 2016, the State filed a motion to dismiss the
third-party complaint against it based on sovereign immunity.
The State did not assert sovereign immunity on behalf of DHS.
Wilson responded and denied the State's allegations, and
a hearing was held on the motion on February 8, 2017. On
March 9, 2017, the circuit court entered an order granting
the State's motion and dismissing the third-party
complaint without prejudice.
filed an amended response to Wilson's counterclaim on May
9, 2017, and renewed its request that the order of
investigation be vacated and that the counterclaim be
dismissed. DHS also addressed the merits of Wilson's
constitutional arguments and prayed that the circuit court
deny her claims for declaratory and injunctive relief.
hearing on June 23, 2017, at which the circuit court heard
only arguments of counsel, the court entered an order on July
21, 2017, denying Wilson's constitutional claims and
granting DHS's motion to dismiss her counterclaim and
vacate the order of investigation. Wilson filed a timely
notice of appeal from the circuit court's order.
appeal, Wilson does not challenge the circuit court's
denial of her claims for declaratory and injunctive relief.
Instead, she argues that the circuit court lacked
subject-matter jurisdiction to hear her counterclaim because
DHS was entitled to sovereign immunity under article 5,
section 20 of the Arkansas Constitution. She contends that
the circuit court's order addressing the merits of her
claims was void, that the order should be reversed, and that
her case should be dismissed without prejudice due to lack of
response brief, DHS asserts several bases on which this court
may affirm the circuit court's order. DHS argues that (1)
Wilson failed to preserve any sovereign-immunity argument;
(2) Wilson had already obtained the relief she sought below,
dismissal of the order of investigation, and the relief she
seeks on appeal, dismissal of her counterclaim, so a decision
by this court would have no practical legal effect on any