concurring. I concur. At oral argument, the question was raised concerning whether a final order had been entered in this cause below from which appellant John Gullick could bring an appeal. In my opinion, there was not.
The parties agree that this action started as a family in need of supervision (FINS) case, and the custody of Gullick’s child was placed with the Department of Human Services (DHS). In such cases, DHS is to produce a case plan within thirty days of placement and the case is subject to a periodic six-month court review until a permanent order of custody is entered or the juvenile is returned to the parent or the court has discontinued orders for family services. See Ark. Code Ann. §§ 9-27-328, 9-27-332, 9-27-337 (Supp. 1995).
This court has held many times that an order, decree, or judgment must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject matter in controversy before it is appealable. This court has also held that a trial court’s temporary order awarding custody of a child is not appealable if such custody case remains pending subject to a trial on the merits. See Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984); Ark. R. App. P. 2(a). Citing the Chancellor case, the court of appeals in Jones v. Jones, 41 Ark. App. 146, 852 S.W.2d 325 (1993), stated the rule as follows:
. . . the Arkansas Supreme Court clarified the law regarding appealability of temporary child custody orders by holding that a mere temporary award of custody pending trial on the merits is not appealable, but an award of custody, even if expressly stated to be temporary, is final for purposes of appeal if the issue of custody was decided on the merits and the parties have completed their proof. In the case at bar, the appellant’s motion to expedite is grounded on her assertions that she had not yet completed her proof in this case. Therefore, the decree in this case is a temporary award pending trial on the merits, and is nonappealable pursuant to Chancel-lory. Chancellor.
In the present case, the Washington County Juvenile Court entered an order dated April 17, 1995, finding (1) the child and her family are in need of services, (2) the child should be placed with DHS, (3) Mr. Gullick was directed to perform a number of duties (submit an affidavit of financial means, sign a release for certain information, and submit to drug testing), and (4) the court would conduct periodic six-month reviews. Obviously, since the trial court ordered certain directives to be done and other hearings to be conducted in the future, the order was temporary and under the rationale of the Chancellor and Jones cases, was not appealable.
I have looked elsewhere without success to determine if there might be a case, rule, or statute under which a parent might appeal a temporary custody order entered in a FINS or dependent-neglect case. Instead, I find that Ark. Code Ann. § 9-27-343(a) (Repl. 1993), requires that all appeals from juvenile court shall be made to the Arkansas Supreme Court or Court of Appeals in the same time and manner provided for appeals from chancery court. (Emphasis added.) Thus, § 9-27-343(a) appears consistent with the rule set out above in the Chancellor and Jones cases. I would further point out that Chancellor in particular cited Ark. R. App. P. 2(a) when holding that a temporary custody award is not a final appealable order.1
At oral argument, Gullick referred to the language in § 9-27-343(c) and suggested that that subsection anticipates an appeal of an out-of-home placement decision, since it provides that, “if a final decision from the appellate court is not rendered within six months from the date of entry of the notice of appeal, the Director of the Administrative Office of the Courts shall designate either a foster-care magistrate or a juvenile judge of another court to conduct a review of the case.” While that language is bothersome and confusing, I would submit subsection (c), as enacted under Act 273 of 1989, was a part of the General Assembly’s failed effort to provide appointed magistrates (or masters) to hear juvenile cases. This court held that the appointment of such officials constituted an unauthorized grant of legislative authority and an impermissible creation of what amounts to substitute judges. See Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989).
For the reasons stated above, I believe Gullick’s appeal should be dismissed, since he appealed from a nonappealable order. At the same time, I would like to suggest that this court’s Committee on Civil Practice or the General Assembly study and determine if, for appeal purposes, a temporary custody order entered in a juvenile court’s FINS or dependent-neglect hearing should be considered differently from one entered in a chancery court proceeding. If so, a rule or law should be promulgated or enacted clearly providing for such an appeal.
Rule 2(a) sets out what orders may be appealed from a circuit, chancery, or probate court.