Arkansas Dept. of Human Services v. Huff
| Decision Date | 07 February 2002 |
| Docket Number | No. 00-1357.,00-1357. |
| Citation | 347 Ark. 553,65 S.W.3d 880 |
| Parties | ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Rose HUFF. |
| Court | Arkansas Supreme Court |
Dana McClain, Little Rock, for appellant.
Paul R. Post, Barling, for appellee.
This case is on appeal from the August 16, 2000, order of the Chancery Court of Sebastian County, Fort Smith District, Juvenile Division, wherein the trial court returned seven children to their mother and closed the case. The questions before us are whether a Colorado home study was properly excluded from evidence by the trial court and whether the Interstate Compact on the Placement of Children (ICPC), Ark.Code Ann. §§ 9-29-201 et seq. (Repl.1998), applies to court-ordered placement of children with an out-of-state parent. Based upon the trial court's authority under Ark. R. Evid. 403 to weigh the relevance of the evidence against the potential for prejudice and the plain language of the ICPC, we affirm the trial court.
Rose Huff requested assistance from the Arkansas Department of Human Services (ADHS) in July 1998. Ms. Huff had seven young children, the youngest of which had just been born prematurely and was still in the hospital. She was unemployed, homeless, and without transportation. Ms. Huff was walking around all day with six of the young children because they were not allowed to stay at the Salvation Army during the day. ADHS filed a petition for emergency custody of the children, requesting that the children be declared dependent-neglected. An ex parte order entered on July 31, 1998, placed the children in the custody of ADHS and appointed a guardian ad-litem for them.
On August 17, 1998, the trial court issued a probable cause order granting custody of the seven children to ADHS. Ms. Huff's oldest daughter had previously been sent to Colorado to live with some of Ms. Huff's family. After ADHS took custody of the other children and the trial court entered its adjudication order on September 21, 1998, finding the children dependent-neglected as defined in the Arkansas Juvenile Code, Ms. Huff moved to Colorado. The seven young children were subsequently placed in the homes of Ms. Huff's mother and aunt in Colorado through the ICPC. Due to a disruption, the children were returned to Arkansas less than three months later and placed in foster care. The case plan implemented called for reunification of the children with Ms. Huff. It required her to visit the children once per week by telephone and one weekend per month in person. ADHS provided air transportation for the monthly visits. Ms. Huff was ordered to maintain a stable income, maintain appropriate and stable housing, seek counseling, seek treatment for alcohol addiction, and visit with the children as ordered.
In September 1998, Ms. Huff found employment in Colorado, which she maintained through the August 2000 hearing. She also obtained housing. Ms. Huff attended nine of fifteen scheduled counseling appointments and then was dropped from the counseling program due to non-attendance. She also attended five of twelve drug and alcohol screenings before being dropped from the screening program due to missed appointments. Ultimately, she obtained reports reflecting that no further counseling was necessary. She completed a parenting class and visited her children each month. On July 22, 1999, after concluding that Ms. Huff had made progress in complying with the case plan, the trial court decided that the goal of reunification was still in the best interests of the children. On September 2, 1999, however, the court determined that continuation of custody with ADHS was necessary for the children's health and safety.
ADHS filed a petition for termination of parental rights on September 27, 1999, because the children had been out of the home for more than one year and reunification efforts had been unsuccessful. A termination of parental rights hearing was held on December 6, 1999. The trial court terminated the parental rights of the father, but denied ADHS's request to terminate the parental rights of Ms. Huff. In addition to existing requirements set by the court, Ms. Huff was ordered, as of May 8, 2000, to begin paying her own transportation expenses for her monthly visits with the children. At the December 6 hearing, ADHS proffered the results of a home study conducted on Ms. Huff's home in Colorado pursuant to the ICPC. The study revealed that Colorado officials found the home to be inappropriate and would deny placement under the ICPC. The trial court refused to admit the home study into evidence based upon the fact that no witness was present to be cross-examined as to its findings.
Following a review hearing on August 8, 2000, the trial court concluded that Ms. Huff had complied with the case plan and prior orders of the court "by cooperating with the Department, maintaining stable employment and housing, [paying] for her own travel expenses to visit, [making] all visits, [having] phone contact with the children and [providing] two drug assessments at this hearing," and ordered that custody of the children be returned to her. Based upon its finding that the family required no further services, the trial court closed the case. ADHS now appeals from that order entered on August 16, 2000.
The appellant claims that the trial court erred by not admitting the Colorado home study into evidence. Ms. Huff argues that the issue of admissibility of the home study is not properly before this court. While the home study was proffered at the termination of parental rights hearing on December 6, 1999, Ms. Huff maintains that ADHS is barred from raising the issue on appeal because the study was not proffered at the August 8, 2000 hearing from which this appeal is taken.
Arkansas Rule of Appellate Procedure— Civil 2(c)(3) is determinative of which orders resulting from juvenile hearings are final appealable orders. Under that rule, orders resulting from termination of parental rights hearings (in juvenile cases where an out-of-home placement has been ordered) are final appealable orders. Ark. R.App. P.—Civ. 2(c)(3)(C). A notice of appeal must be filed within thirty days from entry of the judgment, decree, or order appealed from. Ark. R.App. P.— Civ. 4(a). Thus, Ms. Huff argues that ADHS should have appealed the court's ruling on the admissibility of the home study within thirty days following the trial court's entry of its order terminating parental rights and review order on December 13, 1999.
This court has held that, where an issue was not addressed below, we will not consider it for the first time on appeal. See B.C. v. State, 344 Ark. 385, 40 S.W.3d 315 (2001). ADHS could have appealed the trial court's refusal to terminate parental rights under Ark. R.App. P.—Civ. 2(c)(3)(C), but it chose only to dispute the August 16 order returning custody of the children to Ms. Huff. While it is true that ADHS neither offered nor proffered the home study at the August 8 hearing, the issue of the home study was ruled on by the trial court at the August 8 hearing. ADHS attempted to introduce into evidence a "Court Report" which stated: Ms. Huff's counsel objected to the portion of the report referring to the home study, as the court had already decided at the December 6 hearing that the home study would not be admitted into evidence without the presence of someone who could be cross-examined as to its contents. The court then ordered that the portion of the report referring to the home study be stricken. In addition, at the conclusion the August 8 hearing, counsel for ADHS objected to placing the children in Colorado without an approved ICPC home study. The court replied: The record shows that the admissibility of the home study was before the trial court at the August 8 hearing, and thus, the issue is properly before this court.
ADHS asserts that the trial court abused its discretion in refusing to admit the Colorado home study into evidence as a business record under Ark. R. Evid. 803(6) or as a public record or report under Ark. R. Evid. 803(8). We review evidentiary errors under the abuse-of-discretion standard. Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998). The trial court has broad discretion in its evidentiary rulings; hence, the trial court's findings will not be disturbed on appeal unless there has been a manifest abuse of discretion. Id.
At the December 6 hearing, ADHS attempted to introduce the home study, and Ms. Huff's counsel objected based on the fact that the person who prepared the report was not going to be available to testify and be cross-examined. ADHS argued that the report was admissible under either Rule 803(6) or 803(8). The hearsay exceptions in Rule 803 include an exception for business records:
(6) Records of Regularly Conducted Business Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses [sic], made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.
Ark. R. Evid. 803(6). This court...
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