Arkansas Department of Human Services v. Southerland

Judith Rogers, Judge,

dissenting. I respectfully dissent from the majority opinion and, with due regard, disagree with one aspect of the dissenting opinion of the honorable Judge Meads. Before addressing my concerns and the findings of the other opinions, I believe that it is necessary to clarify some undisputed facts in this case that were omitted by the majority opinion.

DHS was relieved from providing services to the father of the juvenile, Charlie Smith, on October 9, 1996. Based on the limited abstract before us, it appears that DHS had been responsible for the care and custody of Charlie since October 9, 1996. We are unable to determine the extent of DHS’s responsibilities concerning Charlie because appellant’s abstract does not provide the hearing on July 9, 1997, or August 7, 1997. There is also some indication in the record that these parties were in court in June or May of 1997, but again, we do not have an abstract that reflects that hearing.

Charlie left the foster home of the Morris’s and moved in with appellee in January of 1997. In June, DHS requested that Charlie be placed with appellee even though DHS knew that appellee had not been approved for foster care. Apparently, in June the court approved DHS’s request to place Charlie with appellee. The abstract does not contain the hearing or order which allowed this placement, so I am unable to determine what the circumstances were surrounding that placement or if board payments were ordered at that time. The judge did note, during the hearing on December 11, 1997, that he believed the issue of board payments had previously been resolved. However, based on this abstract, I am unable to determine what actions occurred previous to the December 11, 1997, hearing. Our law has long been established that where the proceedings had before the trial court are not preserved and brought forward in the record, the appellate court must presume that the absent material was sufficient to support the trial court’s findings and decree. Keathley v. Diversified Fastener & Tool Co., 2 Ark. App. 59, 616 S.W.2d 755 (1981).

First, I would affirm this case because appellant’s abstract is flagrantly deficient. From the above recitation, it is clear that there is pertinent information and evidence necessary for the resolution of this case that has not been abstracted. The appellant carries the burden of producing an abstract that is an impartial condensation, without comment or emphasis, of material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented on appeal. Hooker v. Farm Plan Corp., 331 Ark. 418, 962 S.W.2d 353 (1998); Ark. Sup. Ct. R. 4-2(a)(5). Also, it is the appellant’s burden to abstract the record to demonstrate error, and the appellate court will not go to the record to determine whether reversible error occurred. McPeek v. White River Lodge Enters., 325 Ark. 68, 924 S.W.2d 456 (1996). Although the majority believes that the abstract is not deficient, it is obvious that for a meaningful review of this case the prior hearings involving the parties are necessary for a clear understanding of the issues before us.

Second, a statement set out in the majority opinion needs clarification. The majority states in its opinion that “DHS contended therefore that it did not ‘place’ Charlie in Mr. Souther-land’s house.” There is no reference or statement in the abstract before this court that DHS made that contention below. That statement by DHS is found for the first time in its argument on appeal. We cannot review arguments made for the first time on appeal. Dellinger v. First Nat’l Bank of Russelllville, 333 Ark. 460, 970 S.W.2d 223 (1998). Because the abstract does not show that this point was argued before the juvenile court, we cannot address it here. In fact, it is clear from the abstract of the juvenile court proceedings that appellant never denied requesting the placement of Charlie with appellee.

Third, I dissent strongly from the majority’s finding that:

[t]he juvenile court order in the instant case was directly contrary to these statutory requirements and DHS policies, and it provided no satisfactory justification for ignoring them. Consequently, we reverse and dismiss the juvenile court order because under the circumstances of this case the court lacked statutory authority to order appellant, the Arkansas Department of Human Services, to pay Mr. Southerland $3,325.

The majority has reversed and dismissed this case on an issue that was not raised below by DHS. The only objection the abstract reveals to have been made by DHS below challenging the order to pay Mr. Southerland $3,325 was that Mr. Southerland’s home was not properly licensed until November. After that objection, counsel clearly stated, “[t]he only reason I am voicing this objection is that I’m not sure really what the Department’s position will be, but I know I must preserve the record if I intend to object.” The abstract does not reflect any objection or argument that the juvenile court lacked the statutory authority to order DHS to pay Mr. Southerland or that the court’s order was contrary to statutory requirements or DHS policy. It is well established that we do not reach arguments made for the first time on appeal, and we do not reverse for error not brought to the attention of the trial judge. Silvey Cos. v. Riley, 318 Ark. 788, 888 S.W.2d 636 (1994). I will not and cannot disregard our standard and limits of appellate review to reverse and dismiss this case on issues not raised below.

Even if DHS had preserved the issues that the majority finds constitute reversible error, I still would not agree with the majority’s assessment of the law. The majority found that DHS policies provided that board payments are paid to “approved foster parents”. The majority also found that the juvenile court provided no satisfactory justification for ignoring the statutory requirements and DHS policies and that the court lacked statutory authority to order DHS to pay appellee. The abstract does not contain the policy relied on by the majority; however, the supreme court has held that the juvenile court’s orders do not have to comply with DHS policy. See Arkansas Dept’ of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998); Arkansas Dept’ of Human Servs. v. Clark, 304 Ark. 403, 802 S.W.2d 461 (1991). There is no provision in the juvenile code that arguably requires the juvenile court to fashion its orders within the policy guidelines of DHS. Id. As far as the juvenile court’s statutory authority to require DHS to pay appellee for providing care for Charlie, I believe that the authority is found at Ark. Code Ann. section 9-27-303(19) (Repl. 1998). “Family services” includes relevant services, including, but not limited to: child care, cash assistance, or transportation provided to a juvenile. Ark. Code Ann. section 9-27-303(19) (Repl. 1998). The jurisdictions of the juvenile court and DHS overlap in numerous and varied areas. One such area involves family services. See Arkansas Dept’ of Human Servs. v. Clark, supra. Under Ark. Code Ann. section 9-27-337 (b)(1) (Repl. 1998), the juvenile court shall determine and shall include in its orders whether the case plan, services, and placement meet the special needs and best interests of the juvenile and whether the state has made reasonable efforts to provide family services. I believe under this statutory authority the juvenile court could order DHS to pay appellee the amount due for the care and services provided to Charlie for the period of time that DHS requested that Charlie be placed with appellee. Thus, assuming that the issue was preserved, I would affirm the juvenile court’s order requiring DHS to reimburse or compensate appellee for $3,325.

Lastly, I agree with the law as cited by Judge Meads, but I disagree with her conclusion that this order is not a final appeala-ble order. It is my view that the stay of that order distinguishes this case and negates the need for the subsequent hearing that is alluded to in the trial court’s order. Thus, if there is no subsequent hearing because appellant’s obligation to pay has been stayed then the order is final.

Based on the fact that appellant’s abstract is deficient I would affirm this case, and in the alternative, assuming the abstract was not deficient, I would affirm because of appellant’s failure to preserve its arguments for appeal and because of DHS’s attempt to raise arguments for the first time on appeal.