Edwards v. Edwards , 474 S.W.3d 58 ( 2015 )

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SUPREME COURT OF ARKANSAS
No. CV-15-395
RAYMOND EDWARDS AND Opinion Delivered November 5, 2015
PATRICIA EDWARDS
APPELLANTS APPEAL FROM THE LONOKE
COUNTY CIRCUIT COURT
V. [NO. 43JV-11-54]
HONORABLE SANDY HUCKABEE,
ARKANSAS DEPARTMENT OF JUDGE
HUMAN SERVICES
APPELLEE APPEAL DISMISSED; COURT OF
APPEALS’ OPINION VACATED.
PAUL E. DANIELSON, Associate Justice
Appellants Raymond Edwards and Patricia Edwards appeal from the circuit court’s
order denying their motion for custody of their granddaughter, M.A.E., and dismissing them
from the dependency-neglect proceedings brought by appellee Arkansas Department of
Human Services (“ADHS”). The Edwardses’ appeal was originally dismissed by the court of
appeals, see Edwards v. Arkansas Dep’t of Human Servs., 2015 Ark. App. 267, 460 S.W.3d 802,
and this court granted the Edwardses’ petition for review. Upon the grant of a petition for
review, we consider the case as though it had been originally filed in this court. See Mahone
v. Arkansas Dep’t of Human Servs., 2011 Ark. 370, 383 S.W.3d 854. On appeal, the Edwardses
assert that (1) their notice of appeal and amended notice of appeal were timely filed and (2)
there was insufficient evidence that the denial of their motion for custody was in M.A.E.’s
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best interest. Because the order from which the Edwardses appeal is not a final, appealable
order, we dismiss the appeal.
On March 9, 2011, ADHS filed a petition for emergency custody and dependency
neglect against Trish Edwards and Bruce Edward Allen, the parents of M.A.E., M.E., and
A.E. An ex parte order for emergency custody was then entered, finding that immediate
removal of the children from their mother was in their best interest and necessary to protect
their health and safety, and placing custody of the children with ADHS. Subsequently, a
probable-cause order was filed. In May 2011, the children were adjudicated dependent-
neglected due to environmental neglect, with the goal of the case being reunification.
On July 6, 2011, the Edwardses, the children’s maternal grandparents, moved to
intervene in the matter, and the circuit court granted their motion. In October 2011, the
Edwardses filed a petition seeking guardianship of the three children,1 and on May 9, 2012,
they filed a motion for child custody, asserting that it was in the best interest of the children
to be placed in their custody and continue to be raised together as a family unit. On
November 13, 2012, ADHS and the children’s attorney ad litem jointly petitioned for
termination of the parental rights of Trish and Bruce. Shortly thereafter, the Edwardses filed
an amended petition seeking to be appointed the guardians of M.A.E., M.E., and A.E.
On May 8, 2013, an agreed order was entered, permitting the Edwardses to visit M.E.
and A.E. two times a week and directing family counseling for the Edwardses, M.E., and A.E.
1
Their petition affirmatively stated that they already had guardianship of another
sibling, M.D.E.
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In addition, the order directed that, as of June 20, 2013, temporary custody of M.E. and A.E.
was to be transferred from ADHS to the Edwardses. In May 2014, the circuit court entered
an order granting permanent custody of M.E. and A.E. to the Edwardses as of November 4,
2013,2 finding that it was in the best interests of M.E. and A.E. and best for their health,
welfare, and safety. At the same time, the court ordered that M.A.E. remain in foster care,
reserving its ruling as to her future placement.
In its order of July 31, 2014, however, the circuit court ruled that, while it was clear
that the Edwardses were good people who loved and cared deeply for M.A.E., it was not in
M.A.E.’s best interest to be placed in their custody, nor was it best for her health, welfare, and
safety. To that end, the circuit court denied the Edwardses’ motion for custody of M.A.E.
and ordered that she was to remain in foster care. It also ceased all visitation between the
three siblings and permitted a final visit between M.A.E., her siblings, and the Edwardses.
Finally, the circuit court dismissed the Edwardses from the case and included a certificate
pursuant to Arkansas Rule of Civil Procedure 54(b) in its order. It is from this order that the
Edwardses bring the instant appeal.
As their first point on appeal, the Edwardses assert that their appeal is timely because
both their notice of appeal and amended notice of appeal were timely filed. They contend
that their appeal is from the denial of a motion for custody, not one falling within the confines
of Arkansas Supreme Court Rule 6-9, which governs appeals in dependency-neglect cases;
2
This was the date of the hearing that was held before the order was entered.
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therefore, they assert, the twenty-one-day limit for filing a notice of appeal set forth in Rule
6-9 does not apply. Instead, they aver, that their appeal is a juvenile case governed by
Arkansas Rule of Appellate Procedure–Civil 2(c), which provides that such appeals are to be
made in the same time and manner as appeals from circuit court, and, as such, they had thirty
days in which to file their notice of appeal.
ADHS responds that, assuming the case is appealable, any order arising from a
dependency-neglect proceeding should be subject to Rule 6-9. The attorney ad litem for
M.A.E. agrees with and adopts the position of ADHS.
We need not address the timeliness of the Edwardses’ notice of appeal and amended
notice of appeal because we must dismiss their appeal for lack of a final order. While neither
party has raised this issue, the question whether an order is final and subject to appeal is a
jurisdictional question that this court will raise sua sponte. See Chitwood v. Chitwood, 2013
Ark. 195. Here, the Edwardses bring their appeal from that portion of the circuit court’s
order denying them custody of M.A.E.; however, such an order is not appealable under this
court’s rules.
Turning first to Arkansas Supreme Court Rule 6-9, which governs appeals in
dependency-neglect cases, the rule provides that 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 for delay of an appeal, in accordance with Ark. R. Civ. P. 54(b);
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(C) termination of parental rights;
(D) denial of right to appointed counsel pursuant to Ark. Code Ann.
§ 9-27-316(h); and
(E) denial of a motion to intervene.
Ark. Sup. Ct. R. 6-9(a)(1) (2015). Notably, the rule lacks any specific mention of an appeal
from an order denying custody.
Nor does Arkansas Rule of Appellate Procedure–Civil 2 permit such an appeal
outright, despite the Edwardses’ claims to the contrary. First and foremost, the order is not
a final one in accord with Ark. R. App. P.–Civ. 2(a)(1) because the order clearly contemplates
future action with respect to the placement of M.A.E. Notwithstanding, Rule 2(d) does
provide that all “final orders awarding custody are final appealable orders.” Ark. R. App. P.–
Civ. 2(d) (2015). In this case, however, the Edwardses seek to appeal that portion of the
circuit court’s order denying custody of M.A.E., not its grant of permanent custody of M.E.
and A.E.
While the order denying custody is not explicitly appealable under either Ark. Sup. Ct.
R. 6-9 or Ark. R. App. P.–Civ. 2, a circuit court may certify an otherwise nonfinal order for
an immediate appeal by executing a certificate pursuant to Rule 54(b) of the Arkansas Rules
of Civil Procedure. See, e.g., Pyramid Life Ins. Co. v. Parsons, 2013 Ark. 125. Likewise, Ark.
Sup. Ct. R. 6-9(a)(1)(B) permits an appeal from a “disposition, review, no reunification, and
permanency planning order” but also requires an “express determination by the court
supported by factual findings” in accordance with Rule 54(b). See Ark. Sup. Ct. R. 6-
9(a)(1)(B). As already noted, the circuit court in the instant case did attempt a Rule 54(b)
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certification, but it is clear under this court’s case law that the circuit court’s certificate is
simply insufficient.3
Pursuant to Ark. R. Civ. P. 54(b),
[w]hen more than one claim for relief is presented in an action, whether as a claim,
counterclaim, cross-claim, or third party claim, or when multiple parties are involved,
the court may direct the entry of a final judgment as to one or more but fewer than
all of the claims or parties only upon an express determination, supported by specific
factual findings, that there is no just reason for delay and upon an express direction for
the entry of judgment.
Ark. R. Civ. P. 54(b) (2015). With respect to the requirements of Rule 54(b), we have
observed that merely tracking the language of Rule 54(b) will not suffice; the record must
show facts to support the conclusion that there is a likelihood of hardship or injustice which
would be alleviated by an immediate appeal rather than at the conclusion of the case. See
Fisher v. Citizens Bank of Lavaca, 307 Ark. 258, 819 S.W.2d 8 (1991). Not only must the
record show such facts, but also “[w]e have consistently held that the rule requires the order
to include specific findings of any danger of hardship or injustice that could be alleviated by
an immediate appeal and to set out the factual underpinnings that establish such hardship or
injustice.” Holbrook v. Healthport, Inc., 2013 Ark. 87, at 4.
In the instant case, the circuit court’s order merely sets forth each of the circuit court’s
rulings, then recites the following language from the rule:
Upon the basis of the foregoing factual findings, the court hereby certifies, in
accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has determined that there is
3
Indeed, the Edwardses conceded as much in their petition for review.
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no just reason for delay of the entry of a final judgment and that the court has and does
hereby direct that the judgment shall be a final judgment for all purposes.
The certificate does not include specific findings of any danger of hardship or injustice that
could be alleviated by an immediate appeal, nor does it detail facts that establish such a
hardship or injustice. When it does not do so, it does not satisfy the requirements of Rule
54(b). See, e.g., Robinson v. Villines, 2012 Ark. 211.
Because the order denying custody of M.A.E. is not final or otherwise appealable, and
the included certificate fails to comply with Rule 54(b), we lack jurisdiction to hear the
appeal. See, e.g., Crafton, Tull, Sparks & Assocs. v. Ruskin Heights, LLC, 2013 Ark. 85.
Accordingly, the appeal is dismissed without prejudice.
Appeal dismissed; Court of Appeals’ opinion vacated.
BAKER, GOODSON, and HART, JJ., dissent.
COURTNEY HUDSON GOODSON , Justice, dissenting. The expedition of the
appellate process is our stated goal in dependency-neglect cases. Ashcroft v. Ark. Dep’t of
Human Servs., 2009 Ark. 461 (per curiam) (citing Ratliff v. Ark. Dep’t of Health & Human
Servs., 371 Ark. 534, 268 S.W.3d 322 (2007)); see also Schubert v. Ark. Dep’t of Human Servs.,
2009 Ark. 596, 357 S.W.3d 458. Rather than adhering to this important policy in matters
involving children, the majority chooses to parse words and to reach a result that is both
illogical and inconsistent with this court’s caselaw. I dissent.
In this case, the circuit court denied the Edwardses’ request for permanent custody of
their granddaughter, M.A.E., and dismissed them from the dependency-neglect proceeding.
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They wish to appeal that final custody decision. The majority acknowledges, as it must, that
Arkansas Supreme Court Rule 6-9 does not speak of permanent custody orders in
dependency-neglect cases. Yet, contrary to this court’s opinion in West v. Arkansas Department
of Human Services, 373 Ark. 100, 281 S.W.3d 733 (2008), the majority holds that no appeal
lies from the final, permanent custody order without a Rule 54(b) certificate. With all due
respect, the majority’s position is not well taken.
In West, this court addressed the issue whether an order granting permanent custody
of two children to their father could be appealed by the mother, from whose custody the
children had been removed. Also in that case, the circuit court had continuing jurisdiction
regarding another child, and the custody order contained no Rule 54(b) certificate, as required
in some instances by Rule 6-9. We accepted certification of that case from the court of
appeals to determine whether Rule 2(d) of the Arkansas Rules of Appellate Procedure–Civil
applied to permanent custody orders in dependency-neglect cases and whether that rule
conflicted with Rule 6-9. This court found no conflict between the two rules and specifically
held that Rule 2(d) applies to permanent custody orders in dependency-neglect cases. We
reasoned as follows:
It is readily apparent from its text that Rule 6-9 does not specifically
refer to permanent custody orders in the context of a dependency-neglect case.
Accordingly, 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 custody orders are final, appealable orders. See also Ford
v. Ford, 347 Ark. 485, 65 S.W.3d 432 (2002) (holding that Rule 2(d) permits
an appeal from any order that is final as to the issue of custody, regardless of
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whether the order resolves all other issues). In the order appealed from in this
case, the circuit court specifically said that “[t]he case is closed as to [B.W.] and
[C.W.]” because permanent custody was granted to Curtis West. We hold that
Rule 2(d) applies to permanent custody orders in dependency-neglect cases,
and, thus, Shannon West’s appeal from the order granting permanent custody
of B.W. and C.W. to Curtis West is a final, appealable order. We further hold
that a Rule 54(b) certificate is not required under Rule 6-9 for an appeal of the
permanent custody order regarding B.W. and C.W.
West, 373 Ark. at 104, 281 S.W.3d at 735–36.
It is abundantly clear that the West court held without limitation that permanent
custody orders in dependency-neglect cases are appealable in their own right under Rule 2(d)
without a Rule 54(b) certificate. Nonetheless, this majority now holds, as a matter of
semantics, that Rule 2(d) has no application to the permanent custody order at issue because
Rule 2(d) only governs orders “awarding” custody, and the order in this case denied a request
for permanent custody. However, the holding in West did not turn on the particular language
of Rule 2(d) or whether the circuit court’s order granted or denied the petition for permanent
custody. Instead, the decision rests on traditional jurisprudence and the firm understanding
that permanent custody orders are final and appealable under Rule 2(d), regardless of the
outcome.1 I find it to be wholly illogical that a parent involved in a dependency-neglect case
has leave to appeal when permanent custody of his or her children is given to another person
or a parent, as was the case in West, but a parent or other relatives, like the Edwardses, who
1
My view that this court looks to Rule 2(d) and traditional jurisprudence when
considering the appeal of custody matters in dependency-neglect cases is also buttressed by our
decision in Arkansas Department of Human Services v. Denmon, 2009 Ark. 485, 346 S.W.3d 293.
There, we applied settled law applicable to domestic-relations cases to hold that an appeal did
not lie in th
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petition for permanent custody, may not in like fashion automatically appeal when the
petition for permanent custody is denied. Bewilderingly, today’s decision creates such an
anomaly in the law.2
The majority also bases its decision partially on the fact that the dependency-neglect
proceedings regarding M.A.E. were ongoing and not concluded by the circuit court’s order.
However, that circumstance was also present in West and was no impediment to review.
Similarly, in Schubert, supra, this court permitted an immediate appeal from an order denying
a motion to intervene, even though the dependency-neglect proceeding involving the child
remained in progress.3 Therefore, the pendency of a dependency-neglect case does not
preclude an immediate appeal.
Rule 6-9 remains silent on the appealability of final orders regarding petitions for
permanent custody in dependency-neglect cases. Consequently, this court should continue
to look to Rule 2(d) and our caselaw to determine the issue. The majority offers no cogent
reason for departing from this court’s decision in West and does not explain its logic for
permitting the disparate treatment of litigants that will result from its decision. I would hold
2
I must also note that, under the majority’s strained interpretation of Rule 2(d), there
could be no appeal from an order denying a parent’s motion for a change of custody in
domestic-relations cases, as there is technically no “award” of custody in that situation either.
3
In Schubert, this court was again confronted with a situation not covered by Rule 6-9.
We relied on West and Rule 2(d) to hold that an order denying a motion to intervene in a
dependency-neglect case is a final, appealable order without a Rule 54(b) certificate.
Following that decision, Rule 6-9 was amended to state that the denial of a motion to
intervene is an appealable order. See Rule 6-9(a)(1)(E).
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that the circuit court’s order denying the Edwardses’ request for permanent custody is final
and appealable without a Rule 54(b) certificate. Therefore, I dissent.
BAKER, J., joins.
JOSEPHINE LINKER HART, Justice, dissenting. In my view, the Edwardses were
entitled to appeal from the order in question. The order satisfied Rule 2 of the Arkansas
Rules of Appellate Procedure--Civil and Rule 54(b) of the Arkansas Rules of Civil
Procedure.
Rule 2 of the Arkansas Rules of Appellate Procedure–Civil states in part:
(a) An appeal may be taken from a circuit court to the Arkansas Supreme Court from:
...
2. An order which in effect determines the action and prevents a judgment from which
an appeal might be taken, or discontinues the action.
Here, the circuit court’s order denied the Edwardses’ motion for custody of M.A.E. and
dismissed the Edwardses from the case. It was final as to them inasmuch as it discontinued
their action as intervenors. There was no risk of piecemeal litigation—the Edwardses were
out of court.
Furthermore, I contend that the order satisfied the requirements of Rule 54(b). The
circuit court entered a Rule 54(b) certificate. It stated:
Upon the basis of the foregoing factual findings, the court hereby certifies, in
accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has determined that there is
no just reason for delay of the entry of a final judgment and that the court has and does
hereby direct that the judgment shall be a final judgment for all purposes.
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Importantly, the majority is simply wrong when it states that the circuit court’s order does not
contain factual findings. The certificate refers to the factual findings contained in the circuit
court’s prior order. Specifically, it states:
The intervenors, Patricia and Raymond Edwards are hereby dismissed from this case
and do not need to appear at any future hearings. This hearing was a final hearing as
to the grandparents’ motion for custody of M.A.E.
I am unable to imagine what additional findings are necessary. It appears that the majority
is exalting form over substance.
I am mindful that this court has somehow conflated the phrase “no just reason for
delay,” which is the plain wording in Rule 54(b), with the phrase “danger of hardship or
injustice that could be alleviated by an immediate appeal.” As I pointed out in my dissent in
Holbrook v. Healthport, Inc., 2013 Ark. 87, the latter phrase completely alters the stated intent
of the plain wording of the rule.
“No just reason for delay” means a party can file an interlocutory appeal, unless the
interest of justice weighs against allowing it. Conversely, the required finding that
“there must be some danger of hardship or injustice through delay which would be
alleviated by immediate appeal” requires a finding that an interlocutory appeal should
be allowed only if an immediate appeal offers a significant advantage—to alleviate the
“danger” of injustice or hardship. The distinction is subtle, but quite significant—it
changes the rule from favoring interlocutory appeals to discouraging them.
As in Holbrook, the Rule 54(b) certificate does not contain the thaumaturgic words that the
majority apparently requires. Yet, I contend that it should be obvious that if “justice” is the
desired result of making the proper decision with regard to M.A.E., delaying a final decision
on one very viable placement option—permanent custody with the Edwardses, along with
her siblings—is by definition “injustice.”
James E. Hensley, Jr., for appellant.
Tabitha Baertels McNulty, Office of Policy and Legal Services, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.
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