FROM THE LONOKE COUNTY CIRCUIT COURT [NO. 43JV-17-128]
HONORABLE BARBARA ELMORE, JUDGE
Lewis Law Firm, PLLC, by: Nathan D. Lewis, for appellant.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
J. GLADWIN, JUDGE
appeal from the circuit court's order denying her motion
to be declared indigent, Nikita Mahoney argues that the
circuit court abused its discretion. We affirm.
Lonoke County Circuit Court terminated Mahoney's parental
rights to her four children by order filed October 25, 2018.
Mahoney filed a motion for a finding of indigency that
alleged her monthly expenses exceeded her monthly income.
Attached to the motion was an affidavit in support of her
request to proceed in forma pauperis, and it stated that she
had a job making $1400 a month. The attorney ad litem for the
minor children responded and argued that the standard used to
determine if a parent is indigent is not whether the
parent's monthly expenses exceed the parent's monthly
income; instead, the standard is the federal poverty
guidelines for 2018. The ad litem stated that the poverty
income level is $1012 a month and argued that Mahoney's
$1400 exceeds the poverty level.
no hearing was held on Mahoney's motion, she had
testified at the termination hearing that she works at
Southridge Village Nursing and Rehab making $630 every two
weeks. She said that when she picks up a shift like she had
done the weekend before, her check is "somewhere between
$750 and $800." She said that her monthly expenses
include rent, $456; electricity, $120; water, $28; gas,
$22.75; telephone, $45; and $100 in fines.
circuit court denied Mahoney's motion by order filed
November 6, 2018, finding that her income exceeded the
federal poverty guidelines of "$12, 060 per
month". Mahoney filed a notice of appeal on
November 14, 2018, and this appeal followed.
The burden of establishing indigency is on the person
claiming indigency status. Cordero v. Ark. Dep't of
Human Servs., 2014 Ark. 64, at 3. Whether a person is
indigent is a mixed question of law and fact. Id. In
dependency-neglect proceedings, the trial court is directed
to use the federal poverty guidelines in determining
indigency. Id. (citing Ark. Sup. Ct. R.
6-9(b)(2)(B)). On appeal, the standard of review is whether
the trial court abused its discretion in finding that the
petitioner was not indigent. Id. Abuse of discretion
is "a high threshold that does not simply require error
in the trial court's decision but requires that the trial
court acted improvidently, thoughtlessly, or without due
consideration." Kapach v. Carroll, 2015
Ark.App. 466, at 4, 468 S.W.3d 801, 804.
Bell v. Ark. Dep't of Human Servs., 2016
Ark.App. 72, at 3, 482 S.W.3d 728, 729-30.
argues that she was not given a full and complete opportunity
to reach her burden of proof because the circuit court denied
her indigency request without a hearing on the matter and,
therefore, did not take her complete financial situation into
consideration before denying her request. She contends that
it was an abuse of discretion for the trial court to
"arbitrarily determine a parent's indigency without
taking the parent's complete financial picture into
federal poverty guidelines reflect that to be indigent,
Mahoney needed to make less than $1, 011 a month. Here,
Mahoney's affidavit states that her income is $1400 a
month. Even considering Mahoney's testimony at the
termination-of-parental-rights hearing, her expenses did not
exceed her income. Thus, Mahoney failed to meet her burden of
proof, and the circuit court's denial was not an abuse of
motion to ...