Minor Children v. Arkansas Department of Human Services

         APPEAL FROM THE PERRY COUNTY CIRCUIT COURT [NO. 53JV-17-11], HONORABLE PATRICIA JAMES, JUDGE

          Dusti Standridge, for appellee Jacklyn Gabbard.

         Chrestman Group, PLLC, by: Keith L. Chrestman, for minor children.

         OPINION

         KAREN R. BAKER, Associate Justice

          This appeal stems from the Perry County Circuit Court’s September 14, 2018 order granting permanent custody of the appellants, minor children M.G.1, C.G., K.G., and M.G.2, to Melissa and Lawrence Gabbard, paternal aunt and uncle of the minor children. We hold that the appeal is timely and remand this matter to the court of appeals for further action.

          On September 20, 2017, appellee, Arkansas Department of Human Services (DHS) took emergency custody of the minor children. On September 22, 2017, DHS filed an ex parte petition for emergency custody and dependency-neglect and an order was issued placing the minor children in the custody of DHS. On September 25, 2017, the circuit court entered a probable-cause order, and on November 8, 2017, the circuit court entered an adjudication/disposition order that continued the minor children’s custody placement with DHS. The minor children were adjudicated dependent-neglected as a result of parental unfitness and neglect by their mother, appellee Jacklyn Gabbard. The order also found that, knowing of Jacklyn’s drug history, their father, Micah Gabbard, contributed to the dependency-neglect by agreeing to leave appellants in Jacklyn’s care following their divorce. On March 7, 2018, the circuit court entered a review order stating that

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the case goal was reunification with a concurrent goal of relative placement/guardianship and also stating that the minor children were in the foster home of Melissa and Lawrence and that their needs were being met. On April 16, 2018, the minor children filed a motion to suspend visitation and for no contact against Jacklyn. Jacklyn filed a response on April 20, 2018, and on April 23, 2018, the circuit court entered an order suspending visitation and ordering no contact between Jacklyn and the minor children.

         On August 27, 2018, the circuit court conducted a permanency-planning hearing. On September 14, 2018, the circuit court entered an order awarding permanent custody to Melissa and Lawrence and closed the dependency-neglect case that DHS had brought against Jacklyn and Micah. On September 24, 2018, pursuant to Rule 60 of the Arkansas Rules of Civil Procedure, the minor children filed a motion for relief from judgment, and on October 8, 2018, Jacklyn responded. On October 23, 2018, the circuit court denied the motion. On October 12, 2018, the minor children filed a notice of appeal of the circuit court’s September 14, 2018 order granting permanent custody to Melissa and Lawrence. On November 2, 2018, the minor children filed an amended notice of appeal appealing the permanent-custody award and the denial of the Rule 60 motion.

         The minor children appealed to the court of appeals, which dismissed the matter for lack of jurisdiction. Minor Children v. Arkansas Dep’t of Human Servs., 2019 Ark.App. 242, at 1, 576 S.W.3d 67, 68. On June 20, 2019, we granted the minor children’s petition for review. When we grant a petition for review, we consider the appeal as though it had been originally filed in this court. Bohannon v. Robinson, 2014 Ark. 458, at 4, 447 S.W.3d 585, 587. The minor children present three issues on appeal: (1) the circuit court’s failure to make a not-best-interest finding makes its permanency-plan selection erroneous; (2) the circuit court’s custody decision is not supported by sufficient evidence because no written home study was presented to the circuit court; and (3) the circuit court erred when it failed to give the statutory required notice that the case would be closed.

         Before reaching the merits, we must first address jurisdiction because jurisdiction is a threshold issue, as well as the basis of the order being appealed. Thomas v. State, 2014 Ark. 123, at 2, 431 S.W.3d 923, 925. This appeal stems from a dependency-neglect case in which the circuit court entered an order awarding permanent custody. Arkansas Supreme Court Rule 6-9 (2018), "Rule for appeals in dependency-neglect cases," provides that the following orders may be appealed from dependency-neglect proceedings:

(a) Appealable Orders.

(1) 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 ...