Arkansas Dept. of Human Services v. Collier, 02-1021.

• Decision Date: 23 January 2003
• Docket Number: No. 02-1021.,02-1021.
• Citation: 351 Ark. 506,95 S.W.3d 772
• Parties: ARKANSAS DEPARTMENT OF HUMAN SERVICES v. The Honorable Linda P. COLLIER.
• Court: Arkansas Supreme Court

95 S.W.3d 772

351 Ark. 506

ARKANSAS DEPARTMENT OF HUMAN SERVICES v. The Honorable Linda P. COLLIER.

No. 02-1021.

Supreme Court of Arkansas.

January 23, 2003.

Richard Neil Rosen, Office of Chief Counsel, Little Rock, for petitioner.

Mark Pryor, Att'y Gen., by: David R. Raupp, Sr. Ass't Att'y Gne., for respondent.

ROBERT L. BROWN, Justice.

The Arkansas Department of Human Services (DHS) petitions this court for a writ of prohibition or, in the alternative, for a writ of certiorari, vacating Faulkner County Circuit Judge Linda P. Collier's order in which she declared an unborn fetus to be dependent-neglected and placed the fetus in DHS's custody.¹ The court further mandated that DHS pay the cost of the mother's prenatal care. The sole ground for DHS's petition is that the circuit court was without subject-matter jurisdiction to enter its order or, alternatively, that Judge Collier exceeded her jurisdiction when she entered the custody order. We deny the petition for a writ of prohibition, but we grant the petition for a writ of certiorari.

On August 26, 2002, the circuit court entered an order terminating the parental rights of both Jeff Harper and Alicia Bennett with respect to their 13-month-old son, Justin. In its termination order, the court stated that it was retaining jurisdiction over the case for later review. The next day, the circuit court entered a pickup order for Ms. Bennett, citing as probable cause the fact that she was placing her unborn child "at imminent and substantial risk of serious physical harm or death." The court based its finding on the testimony of Diana Rivers, the court-appointed special advocate, and Shelly Lamb, the maternal grandmother. Their testimony revealed that Ms. Bennett was again pregnant, that she had not received prenatal care, that she was abusing illegal drugs, and that she had illegal drugs in the home where she was living. The court further noted that in recent drug tests, prior to the petition to terminate parental rights, Ms. Bennett had tested positive for methamphetamine. For these reasons, the court ordered police officers to locate Ms. Bennett and detain her in the Faulkner County Detention Center. The court further ordered that drug tests be performed on her with the results to be provided to the court and that prenatal care be administered. The court also ordered DHS to place the matter on its docket for a hearing after the mother's detention.

On August 29, 2002, the circuit court held an emergency hearing and a contempt hearing on its own motion. The court questioned Ms. Bennett as to whether she was pregnant, which she admitted. At the hearing, the court also confirmed from DHS that Ms. Bennett had tested positive for methamphetamine on August 27, 2002, when she was taken into custody. The court then held Ms. Bennett in contempt and ordered her to remain in the custody of the Faulkner County Detention Center until she went into labor. The court added that upon delivery of her baby, Ms. Bennett was to be discharged from the hospital but that the baby would "stay in [the] State's custody."

DHS next presented testimony from Ms. Bennett's case worker, Terri Berger, who testified that Ms. Bennett did not want to participate in any drug treatment and that her sole comment upon discussing drug treatment was: "How long am I gonna have to stay clean to get my baby back?"

At the conclusion of the hearing, the circuit court ruled:

All right. I want her returned back to the Detention Center, and I want the prenatal care initiated, especially with ultrasound and prenatal testing.

Yeah, I think that the way it works, the Department — because I put this unborn child in your care, and I've done that this morning, that actually that unborn child is your client. And then, when — the way that payment works, Medicaid will take over if they get her to the hospital as she goes into labor. And then Medicaid will cover the hospital stay, and then she can be discharged any time she wants to leave after the baby's born.

Now, if you find out through your prenatal testing, ultrasounds and other things, that this baby is malformed and has problems such as limbs missing, if there's deformed heart valves, anything that looks truly, truly dire and that the baby might not live at birth, then get back in here and let's discuss the situation. And I might want whatever doctor you take her to to come in and discuss it, as well.

The court noted that the attorney ad litem would continue to serve in this case, as would Ms. Bennett's appointed counsel.

On August 30, 2002, the circuit court entered its order holding Ms. Bennett in contempt of court for violating previous court orders that she remain drug-free.² The court further found in its order that Ms. Bennett's unborn child was in imminent danger of severe maltreatment and was dependent-neglected, as defined by the Arkansas Juvenile Code. The court ordered that the child be placed in the custody of DHS and further ordered DHS to, ensure that Ms. Bennett receive adequate prenatal care and that she be examined by a doctor as soon as possible.

On September 3, 2002, DHS moved to set aside the court's order. DHS asserted that because the fetus had not been born, it was not a juvenile, as defined by the Juvenile Code, and the court lacked jurisdiction to order the fetus into DHS custody as dependent-neglected. In addition, DHS argued that the court lacked jurisdiction to order it to pay for prenatal care. According to DHS, it was Faulkner County that was legally obligated to provide the necessary medical care for the mother because she was incarcerated in the detention center. DHS contended that the Juvenile Code only permits DHS to pay for, or provide services to, a family for the purpose of either reuniting the family or to prevent removal of the child from the home. Because there was no juvenile, as defined by the Juvenile Code, DHS concluded that the court lacked jurisdiction to order DHS to provide services in this case. Finally, DHS maintained that the General Assembly was clear in its statutory definition of "juvenile" and that the circuit court could not change the plain meaning of the statute because that would violate the separation-of-powers doctrine.

On September 10, 2002, the circuit court held a hearing on DHS's motion to set aside the court's order. DHS repeated its arguments and informed the court that Ms. Bennett's unborn fetus was, at that time, between five-and-a-half to six months old.³ After hearing the arguments of counsel for DHS, counsel for Ms. Bennett, and from Diana Rivers, the child advocate representative, the court made the following ruling:

Well, I'm going to the let the Supreme Court tell us what to do because this is about the third case I've had just like this in the last year. And, if I'm seeing this many cases, other juvenile judges across the state have got to be seeing just as many, if not more. And I'm finding at this time that the statute which has been cited by the Department, 9-27-303(29) in the Code which gives us the definition of a juvenile is too narrow under these circumstances and, in this Court's opinion, should read ".... from viability to age of 18." And I'd be really interested to see what the Arkansas Supreme Court would tell us in a case such as this.

An order was entered denying DHS's motion to set aside, and DHS petitioned this court for a writ of prohibition, or, in the alternative, for a writ of certiorari.⁴

DHS reiterates the same arguments in support of its petition. It first argues that the circuit court has exclusive jurisdiction over proceedings in which a juvenile, as defined by Ark.Code Ann. § 9-27-303 (Repl.2002), is alleged to be delinquent or dependent-neglected. DHS adds, however, that this jurisdiction is limited by the Juvenile Code to those instances where a juvenile, who is defined as an individual from birth to age eighteen, is involved and contends that the Code does not give the circuit court any power over a fetus prior to birth. DHS further claims that because an unborn fetus does not meet the definition of a juvenile, it follows that a fetus can not be a dependent-neglected juvenile. DHS also distinguishes the instant case from that of Aka v. Jefferson Hosp. Ass'n., Inc., 344 Ark. 627, 42 S.W.3d 508 (2001), in that for purposes of a wrongful-death action, the General Assembly has authorized an action for the death of a viable fetus. See Ark.Code Ann. § 16-62-102 (Supp. 2001). Finally, DHS urges that at the time the circuit court made its rulings, there was no pending DHS petition for a dependent-neglected case, and the circuit court acted sua sponte in a separate case after it had already finalized a parentaltermination order in the case of Justin.

The State, on behalf of the circuit court and Judge Collier, responds that the petition for either extraordinary writ should be denied. First, it argues that the circuit court clearly had subject-matter jurisdiction over dependent-neglected proceedings; thus, the court should deny DHS's petition for writ of prohibition. Secondly, it contends that DHS's petition for writ of certiorari should be denied as DHS seeks to use that writ as a substitute for appeal, which it cannot do. Moreover, the State claims that DHS advances no interest that would require this court to decide the matter by extraordinary writ. Alternatively, the State urges that a writ of certiorari should be denied because Judge Collier had the authority to declare the fetus dependent-neglected. According to the State, the fetus was an individual under the Juvenile Code and was adjudicated dependent-neglected before reaching 18.

Finally, the State argues that DHS ignores Amendment 68 of the Arkansas Constitution and Arkansas' clearly enunciated interest in the well-being of the fetus. The State maintains that as to Ms. Bennett's privacy rights, they are "fairly and constitutionally circumscribed to permit the State to declare the child s...