Ark. Dep't of Human Servs. v. Denmon
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Cite as 2009 Ark. 485
SUPREME COURT OF ARKANSAS
No.
09-479
ARKANSAS DEPARTMENT OF
HUMAN SERVICES
APPELLANT,
Opinion Delivered October 8, 2009
AN APPEAL FROM THE GRANT
COUNTY CIRCUIT COURT, NO.
JV-2007-89, HONORABLE CHRIS
WILLIAMS, CIRCUIT JUDGE
VS.
TAMMY DENMON
WRIT OF PROHIBITION DENIED;
WRIT OF CERTIORARI GRANTED:
APPEAL DISMISSED
APPELLEE,
ELANA CUNNINGHAM WILLS, Associate Justice
Arkansas Department of Human Services (DHS) appeals from a permanency planning
order entered by the Grant County Circuit Court. We accepted certification of this case
from the court of appeals because DHS seeks an extraordinary writ as an alternative to
reversal. See Ark. Sup. Ct. R. 1-2(a)(3) (2009).
On September 13, 2007, the Grant County Circuit Court granted emergency custody
of appellee Tammy Denmon’s three children to DHS based on allegations of neglect. The
circuit court entered a permanency planning order on September 25, 2008, stating that
returning the children to Denmon’s custody was contrary to their welfare, and that it was in
the best interest of the children to remain in the custody of their aunt, Hulda Stephenson.
Additionally, the circuit court stated that reunification of the children and Denmon continued
as the “goal of the case” due to Denmon’s compliance with the case plan and court orders,
and because she made “significant measurable progress toward achieving the goals established
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in the case plan.”
DHS submitted a February 4, 2009 report to the circuit court that recommended
termination of Denmon’s parental rights and granting Stephenson permanent custody of the
children, based, in part, on Denmon’s failure to demonstrate “the mental ability to care for
herself or her children” and other behavioral issues. On February 11, 2009, the circuit court
held a permanency planning hearing, rejecting DHS’s recommendation to terminate
Denmon’s parental rights, stating as follows:
We leave this permanency planning hearing with [DHS’s] position to terminate
parental rights. The children need stability but I’m not willing to give up on
the mother at this point. If I was to do that, [DHS] would cut all the services
off. We’ve been over a year in this case and haven’t got to the point we need
to be, I don’t think that’s all Ms. Denmon’s fault. . . I want to give her the
opportunity to get her children back. But I’ve got to have some permanency
in these children’s lives. I’m going to permanently place custody with Ms.
Stephenson. The children need to be stable. But I’m not giving up on the
mother’s position to work with Timber Ridge [Ranch Neurological Center]
and try to get her cognitive skills back together after the stroke to try to get her
to where she can take care of the children. I want the kids to be and know
they’re safe. I’m not giving up on you. . . I’m going to order that she be placed
in Timber Ridge. I want [DHS] to get that set up, get her placed. I want the
evaluations done. I want to review this case in 60 days.
The circuit court continued to state that
I’m not going to do a guardianship, I’m just going to leave the children
permanently with her right now with the option to go back and revisit after we
get through what I deem to be the final test of whether Ms. Denmon’s
cognitive skills are going to work. And I know that’s probably against the law,
but that’s fine. Because I’m, sitting here and I am the law and I don’t think
that you’re going to appeal it.
DHS objected to the circuit court’s order for DHS to specifically place Denmon at the
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Timber Ridge Ranch facility for family services; however, DHS did not otherwise object to
the ruling.
On February 26, 2009, the circuit court entered a “Fifteen Month Permanency
Planning Order,” stating that
The juveniles are placed in the permanent custody of Hulda Stephenson
because the juveniles are in need of permanency. However, the Court is not
willing to give up on the mother and thus, the goal of reunification shall
continue.
DHS filed a notice of appeal on February 27, 2009. The same day, DHS also filed separate
motions to stay and modify the February 26, 2009 order. In its brief in support of the motion
to stay, DHS stated that it did “not seek a stay of any child custody dispositions,” but only that
portion of the order directing DHS to place Denmon at Timber Ridge Ranch. In its motion
to modify the circuit court’s order, DHS made three requests: (1) to modify the portion of
the order that required DHS to specifically place Denmon at Timber Ridge Ranch because
of a lack of jurisdiction; (2) clarify “whether the goal of the case is to be permanent custody
with Hulda Stephenson, or reunification with family services,” because the order’s stated goals
were incompatible; (3) failing modification of the order, to certify the February 26, 2009
order as final under Ark. R. Civ. P. 54(b). The circuit court did not enter an order ruling
on DHS’s motions within thirty days, thus they were deemed denied. See Ark. R. Civ. P.
59(b).
DHS brings two points on appeal. First, DHS argues that the circuit court’s February
26, 2009 order is clearly erroneous, because Ark. Code Ann. § 9-27-338(c) requires a court
to enter only one permanency goal for a dependent-neglected juvenile, and here, the circuit
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court entered concurrent, conflicting goals of permanent custody and reunification. Second,
DHS argues that the circuit court clearly erred as a matter of law by ordering DHS to
specifically place Denmon at the Timber Ridge Ranch facility. However, before we can
address the merits of these arguments, we must determine whether there is a final appealable
order in this case. See Gilbert v. Moore, 364 Ark. 127, 216 S.W.3d 583 (2005).
Citing Ark. R. App. P.–Civ. 2(d) and our decision in West v. Ark. Department of
Human Services, 373 Ark. 100, 281 S.W.3d 733 (2008), DHS asserts that the circuit court’s
February 26, 2009 order is final and appealable because it granted permanent custody to
Stephenson. Civil Appellate Rule 2(d) states that “[a]ll final orders awarding custody are final
appealable orders.” In West we accepted a certified question from the court of appeals
involving the issue of whether a permanency-planning order awarding permanent custody of
two of the four children involved in the case was final and appealable. Specifically, we
addressed a potential conflict between Civil Appellate Rule 2(d) and Ark. Sup. Ct. R. 6-9,
which lists orders that may be appealed from in dependency-neglect cases. Rule 6-9(a)(1)(B)
provides that a “permanency planning order” is appealable in accordance with Ark. R. Civ.
P. 54(b). Although Rule 6-9 does not specifically list a permanent custody order as
appealable, we held that the order granting permanent custody in West was a final, appealable
order because
there is no direct conflict between Rule 2(d) and Rule 6-9, as Rule 6-9 does
not state that permanent custody orders are not final appealable orders or that
a Rule 54(b) certificate is necessary for a permanent custody order relative to
one child to be appealable. Rule 2(d), on the other hand, specifically states that
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custody orders are final, appealable orders.
West, 373 Ark. at 104, 281 S.W.3d at 733.
Here, the circuit court specifically stated in its February 26, 2009 order that Denmon’s
children “are placed in the permanent custody of Hulda Stephenson because the juveniles are
in need of permanency.” “However,” the order stated, “the [c]ourt is not willing to give up
on the mother and thus, the goal of reunification shall continue.” The language in the order
mirrors the circuit court’s statements from the bench at the February 11, 2009 hearing, quoted
above.
This court stated in Gilbert, supra, that the question of “[w]hether a custody order is
final or temporary is not dependent upon the style of the order.” 364 Ark. at 129, 216
S.W.3d at 584. In that case, a mother appealed from an order granting temporary custody
to her child’s biological father. We held the order was not a final, appealable order because,
in addition to the fact that the order was styled as temporary, it also stated that the child was
to remain with the biological father “at this time.” Id. at 129, 216 S.W.3d at 585. We stated
that “language coupled with the trial court’s remarks from the bench demonstrate that the
issue of custody has yet to be determined on its merits and that the parties have not completed
their proof on the issue.” Id. Similarly here, although the February 26, 2009 order stated that
it granted permanent custody of Denmon’s children to Stephenson, the order also stated that
the goal of the case—reunification—“shall continue.” Additionally, as noted above, the trial
court stated at the February 11, 2009 hearing that
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I’m not going to do a guardianship, I’m just going to leave the children
permanently with her right now with the option to go back and revisit after we
get through what I deem to be the final test of whether Ms. Denmon’s
cognitive skills are going to work.
Statements such as these, coupled with the language in the order regarding reunification,
indicate that the trial court granted temporary custody to Stephenson. Accordingly, we hold
that the February 26, 2009 permanency planning order is not a final, appealable order absent
Rule 54(b) certification.
Although we hold that there is not a final, appealable order in this case, DHS
alternatively requests that this court treat its second point on appeal—that the circuit court
erred in ordering DHS to provide family services to Denmon by placing her in the Timber
Ridge Ranch facility—as a petition for extraordinary relief in the form of a writ of
prohibition or writ of certiorari.1
A writ of prohibition is not applicable in this case. It is well settled that a writ of
prohibition is an extraordinary writ that is only appropriate when the lower court is wholly
without jurisdiction. Erin, Inc. v. White County Circuit Court, 369 Ark. 265, 268, 253 S.W.3d
444, 446 (2007). In addition, the writ is appropriate only when no other remedy is available,
such as an appeal. Id. at 268, 253 S.W.3d at 447. Prohibition is a proper remedy when the
jurisdiction of the lower court depends upon a legal rather than a factual question. Id.
Moreover, prohibition is never issued to prohibit a trial court from erroneously exercising its
DHS argues for extraordinary relief solely in reference to its second point on
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jurisdiction. Id. Writs of prohibition are prerogative writs, extremely narrow in scope and
operation; they are to be used with great caution and forbearance. Id. They should issue only
in cases of extreme necessity. Id.
This court has repeatedly stated that it will not issue a writ of prohibition for
something that has already been done. Allen v. Circuit Court of Pulaski County, Ninth Div.,
2009 Ark. 167, ___, ___ S.W.3d ___, ___ (citing Holmes v. Lessenberry, 297 Ark. 23, 759
S.W.2d 37 (1988) (per curiam)). Here, the circuit court has ordered DHS to place Denmon
at Timber Ridge Ranch. Further, DHS’s motions to stay and modify the circuit court’s
February 26, 2009 order were deemed denied. Accordingly, relief in the form of a writ of
prohibition does not lie. See id.
A writ of certiorari is extraordinary relief that this court will grant only when there is
a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the
proceedings are erroneous on the face of the record. Cato v. Craighead County, 2009 Ark. 334,
___ S.W.3d ___. In determining its application, the court will not look beyond the face of
the record to ascertain the actual merits of a controversy, or to control discretion, or to review
a finding of fact, or to reverse a trial court’s discretionary authority. Id. A writ of certiorari
lies only where it is apparent on the face of the record that there has been a plain, manifest,
clear, and gross abuse of discretion, and there is no other adequate remedy. Id. As the court
stated in Lenser v. McGowan, 358 Ark. 423, 427, 191 S.W.3d 506, 508 (2004), a writ of
certiorari is a remedy used to quash irregular proceedings.
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Here, the circuit court’s February 26, 2009 order states that “DHS is to place Tammy
Denmon at Timber Ridge.” Because we hold there is no final, appealable order in this case,
no other adequate remedy exists for DHS regarding this ruling by the circuit court except the
writ of certiorari. See Jordan v. Circuit Court of Lee County, 366 Ark. 326, 332, 235 S.W.3d
487, 492 (2006).
Although the requirement of the lack of another adequate remedy is met, as noted
above, this court will only grant a writ of certiorari if (1) there is a lack of jurisdiction, an act
in excess of jurisdiction on the face of the record, or (2) it is apparent on the face of the
record that there has been a plain, manifest, clear, and gross abuse of discretion. This court
granted writs of certiorari in cases similar to the present appeal in Arkansas Department of
Human Services v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003) and Juvenile H. v. Crabtree, 310
Ark. 208, 833 S.W.2d 766 (1992). In Collier, the trial court determined that an unborn fetus
was a dependent-neglected juvenile even though the Juvenile Code defined “juvenile” as a
person from “birth to age 18.” Additionally, the trial court ordered that DHS take custody
of the unborn fetus and ensure that the mother received prenatal care and a doctor’s
examination. We granted the writ of certiorari, holding that the trial court “exceeded [its]
statutory authority and that, as a consequence, [its] order placing the fetus in the custody of
DHS and requiring that department to render prenatal care constituted a plain, manifest, clear,
and gross abuse of discretion.” 351 Ark. at 523, 95 S.W.3d at 772. In Crabtree, the trial court
ordered that a pregnant mother be placed in DHS’s custody and barred her from terminating
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the pregnancy without a court order. This court granted a writ of certiorari, holding that,
because there was no legal authority to support the trial court’s order, the trial court had
exceeded its jurisdiction and was erroneous on its face.
In dependency-neglect cases, a court may order DHS to provide family services. Ark.
Code Ann. § 9-27-334(a)(1). However, “the court shall not specify a particular provider for
placement or family services if [DHS] is the payor or provider.” Ark. Code Ann. § 9-27335(b). The circuit court’s February 26, 2009 order directing DHS to place Denmon at
Timber Ridge Ranch clearly violates the plain language of § 9-27-335(b); therefore, the order
is erroneous on its face. Further, although a court can order DHS to make family services
available, its custodial jurisdiction is limited to juveniles. See Collier, supra. Accordingly, we
grant the writ of certiorari.
Writ of prohibition denied; writ of certiorari granted; appeal dismissed.
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