FROM THE GARLAND COUNTY CIRCUIT COURT [NO. 26JV-14-367]
HONORABLE WADE NARAMORE, JUDGE
M. Miller, for appellant.
PHILLIP T. WHITEAKER, JUDGE
appellant, T.S.B., by and through her attorney ad litem
(AAL), appeals an order of the Garland County Circuit Court
that granted a change of custody to appellee, Tammy
Robinson-Wright. In this one-brief appeal, the AAL raises
several arguments on behalf of T.S.B. Because we do not have
an adequate record upon which to evaluate these claims, we
order supplementation of the record and rebriefing.
abbreviated version of the procedural history follows. T.S.B.
is a minor. Tammy is her biological mother. Elizabeth
Robinson is T.S.B.'s maternal grandmother. In June 2013,
Elizabeth filed a family-in-need-of-services (FINS) case.
Elizabeth alleged that T.S.B. was in her physical care and
that she needed court assistance to enroll T.S.B. in ARKids
insurance. She requested that the court award her custody of
T.S.B. She further alleged that Tammy was in agreement to her
request, as was the biological father. Because the cause of
action initiated by Elizabeth was a FINS case, T.S.B. was
named as a party and was appointed an AAL. Ultimately, the
trial court adjudicated a FINS and granted custody of T.S.B.
August 2017, Tammy filed a petition for change of custody
seeking to have custody of T.S.B. placed back with her.
Elizabeth filed a response opposing the petition and
indicating service of the response upon the AAL for T.S.B.
Before the court ruled on Tammy's petition, the FINS case
concerning T.S.B. was consolidated with that of her half
21, 2018, the court held a hearing in the consolidated FINS
proceedings. At the hearing, T.S.B. was represented by an
AAL. The parties, including T.S.B., read into the record an
agreement granting Tammy custody of T.S.B. The next day, the
AAL filed a posttrial report objecting to the agreed change
of custody. On behalf of T.S.B., the AAL asserted that T.S.B.
had not been provided proper notice of Tammy's petition
for change of custody. The AAL claimed that he was not the
AAL for T.S.B. prior to consolidation and that neither he nor
T.S.B. had been served with an actual copy of the petition
for change of custody prior to the hearing. The AAL noted
that counsel for Tammy affirmatively represented at the
hearing that T.S.B. had previously been served with the
petition, but that this was a misrepresentation to the court
and to the AAL. The AAL additionally noted that the documents
relating to T.S.B.'s FINS petition filed prior to the
consolidation, including the petition for change of custody,
had not electronically merged upon consolidation and that he
was denied access to those records because he was not the AAL
of record prior to consolidation. Because of his inability to
access the records prior to consolidation, he did not
discover the misrepresentation until after the agreement had
been read into the record. In response to the posttrial
report from the AAL, counsel for Tammy denied misleading the
court. The court signed and entered an "agreed
order" over the AAL's objection.
appeals on behalf of T.S.B. raising several
arguments. Currently, we are unable to reach the
merits of this appeal.
behalf of T.S.B., the AAL contends that neither he nor the
child received actual notice of the petition for change of
custody. He further submits that at the hearing on June 21,
2018, Tammy's counsel "misled" him regarding
the filing of the petition. We, however, do not have a
transcript of this June 21, 2018 hearing before us. As a
result, we cannot determine what statements were made at the
hearing; what contemporaneous objections, if any, were
asserted; whether a continuance was requested; or whether
misrepresentations were made that would justify or allow an
appeal from an agreed order. We find the transcript of the
June 21, 2018 hearing material to our determination. If
anything material to either party is omitted from the record
by error or accident, we may direct that the omission be
corrected and, if necessary, that a supplemental record be
certified and transmitted. Ark. R. App. P.-Civ. 6(e).
note there are material documents in our record that are not
contained in our addendum. For example, we do not have a copy
of the FINS petition originally filed in T.S.B.'s case,
nor do we have the order placing T.S.B. in the custody of
Elizabeth. Additionally, while the addendum contains the
underlying petition for custody filed by Tammy, we do not
have the response filed by Elizabeth. These documents are
useful for a better understanding of the facts and procedural
history of this case, and the absence of them hinders our
understanding of the issues and the procedural posture of the
case before us.
of the deficiency in the record, we remand to the circuit
court to settle and supplement the record with a transcript
of the June 21, 2018 hearing to be completed within thirty
days. Upon filing of the supplemental record, counsel shall
have fifteen days in which to file a substituted abstract,
addendum, and brief containing an abstract of the missing
hearing and any documents necessary for our review.
See Ark. Sup. Ct. R. 4-2(b)(3). We encourage the AAL
to review Rule 4-2 of the Rules of the Arkansas Supreme Court
and Court of Appeals before filing the substituted brief to
ensure that the substituted abstract, brief, and addendum
comply with the rules and that no additional deficiencies are
to supplement the ...