Arkansas Dept. of Human Services v. R.P.

• Decision Date: 11 June 1998
• Docket Number: No. 97-767,97-767
• Citation: 970 S.W.2d 225,333 Ark. 516
• Parties: ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellant, v. R. P., Appellee.
• Court: Arkansas Supreme Court

Page 225

970 S.W.2d 225

333 Ark. 516

ARKANSAS DEPARTMENT OF HUMAN SERVICES, Appellant, v. R. P., Appellee.

No. 97-767.

Supreme Court of Arkansas.

June 11, 1998.

Kay West Forrest, Little Rock, for Appellant.

Winston Bryant, Attorney General, Kelly K. Hill, Deputy Attorney General, Little Rock, for Appellee.

IMBER, Justice.

In this case, the juvenile court ordered the Department of Human Services to provide adequate housing, including electric and water utilities, to a family adjudicated in need of services. Following a period of time during which the utilities were not turned back on, the trial court held DHS, as well as a DHS employee, Sandi Doherty, in willful contempt of its order. On appeal, DHS argues for various reasons that the trial court lacked the authority to order it to restore the utilities. Additionally, both DHS and Doherty contend that the trial court erred in holding them in contempt of court. We affirm as modified.

The underlying matter began as a probation revocation proceeding on a juvenile, R.P. At a hearing in the matter on August 5, 1996, Therese P., R.P.'s mother, explained that all utilities in the family home had been shut off. The prosecutor expressed an interest in converting the matter to a family-in-need-of-services petition, as did R.P.'s guardian ad litem. The trial court opined that the revocation petition needed to be dismissed, and that a family-in-need-of-services petition should be filed. The court also stated that DHS would be ordered to provide supportive services and to do a needs assessment for the family. R.P. was released into the custody of her mother. On August 13, 1996, an order was entered dismissing R.P.'s delinquency petition with the notation that "FINS case to be opened with supportive services offered by DHS." On August 15, a FINS petition was filed by the prosecutor.

At a hearing on September 5, the prosecutor explained that the P. family had gone without water or electricity. R.P. had already missed four and a half days of school, in the prosecutor's opinion, due to "dire circumstances" including the lack of transportation, electricity, and water. Therese P. testified that they had no electricity or water. She had applied for disability and food stamps. Heather Harper, a DCFS caseworker, stated that DHS could not pay the full amount of the water or utilities, "It's outrageous." "We were willing to help, but we can't pay the full amount." She had advised Therese P. where she could go for help other than DHS. The trial court concluded the hearing by finding that the P. family was a family-in-need-of-services.

At a hearing on September 30, Pam Cooper, Harper's supervisor, explained that they had tried to help the family, and had provided transportation. They had also tried to put money together on the utilities from community providers, but the bills were several hundred dollars. She stated that it was her understanding that "Judge Reynolds expected us to pay their bills for them. And, I have no way to accomplish that. I've talked with my area manager about it, on two different occasions, and there's just--we don't have the budget to do that. So, we've done what we can."

According to Therese P., the light company would turn her lights back on if she paid half, $268. R.P. told the trial court that the lack of electricity was a problem because the wind-up clock she had did not work well and she was late for school. Harper stated that they had made an arrangement with the medicaid office for transportation, as well as a number of referrals and contacts regarding the utility problems. According to Harper, the water bill was $550, which had been reduced by the water company from $660. Apparently, the home had a leak, leading to high water bills. The guardian ad litem asked R.P. whether she would rather be in a foster home or in her current home without heat and running water, and R.P. expressed that she would rather stay in her current home.

The trial court ultimately stated that it was going to order DHS to pay for having the water and electricity turned back on, explaining that the only alternative was to place R.P. in the custody of DHS. Brian Rogers, a DHS attorney, stated that if DHS was directly ordered to pay something, "I should raise the issue of possible sovereign immunity in ordering a state agency to directly to pay for something, when we're not actually a party to a case. So, I've raised that issue now." The trial court responded "Sovereign immunity? Well, perhaps I should clarify the order, somewhat, and direct that [DHS] provide adequate housing for this family, including facilities with water and electricity." An order entered on September 30 reflects a full review of the FINS matter, and sets a date for the next review. Within "Additional orders" is a handwritten notation providing "[DHS] is to provide adequate housing for the [P. family]--including water and electricity."

On October 10, DHS filed a motion to set aside this order pursuant to Ark. R.Civ.P. Rule 60(c)and 59(a)(6). In its motion, DHSasserted sovereign immunity, and that "The State, or its agencies, may not be compelled to expend funds not appropriated by the General Assembly of the State of Arkansas."

At a hearing on October 17, the guardian ad litem raised the issue that court-ordered services had not been provided. Rogers responded that DHS had provided some services. Harper stated that she had made phone calls trying to get funds, and recited what she had done in order to obtain adequate housing. According to Harper it was going to take $400 to get the water turned back on. Therese P. stated that it would take $268 to get the electricity turned back on, but Harper remembered $550. Harper said that $3000 was appropriated to Faulkner County for "prevention of foster care, which is what this would come under." Freda Cruse-Phillips, a DHS area supervisor, said that the P. family did not meet the criterion for that money, because the child was not at risk of removal from the home.

The trial court asked Harper what she had done to carry out the September 30 order. She said that she told her supervisor (at the time Pam Cooper), who in turn called the area manager for approval. She got an e-mail back from the area manager, Sandi Doherty, "saying not to pay it." Phillips explained that the decision to go outside the boundaries of the "policy" that governs expenditures of state and federal money is left to "Ms. Jones, or to Tom Dalton, or perhaps even the governor," and one of the primary considerations is whether the child was at risk. From everything she could see, the child was not at risk of removal. The trial court asked whether approval was sought from Dalton, to which Phillips answered no. Phillips later said that if it was $600 or $800, DHS could pay that, but if the bills were $1700, it could not. Harper stated that the bills were over $1300.

The trial court announced that it would issue a show cause order for Doherty for failure to abide by the court's order. The court asked Rogers if he could accept service. Rogers stated that he would like a copy and he would provide it to Doherty, but he would also like for her to be personally served. The trial court responded "all right[,]" and then stated that "where we need to go from here" is for $668 to get paid to get the utilities turned back on.

The trial court then asked Phillips if there was any reason that DHS was not going to pay the $660 immediately. She responded that it exceeds what she or a county supervisor would be allowed to approve, so it would require Doherty's approval. Phillips further testified that "her communication that she has by E-mail from--to--to Pam Cooper, as of September the 26th, was that there was no reason to pay this bill. So I'm not sure that it is a matter of amount to her. I will have to get with her and discuss what the Court's ruling is today and see what we can do."

The record reflects a show-cause order dated October 30, and filed on November 12, directing Doherty to appear and show cause "on the 21st day of November, 1996, at 2:00 p.m. to show cause why she should not be held in contempt of court and punished accordingly[.]" On November 21, the trial court held a hearing in the matter. Harper testified that she had called numerous agencies regarding the P. family, and had obtained $347 for the AP & L bill: $200 from CAPCA, $71.50 from Red Cross, $21.50 from St. Joe, and $50 from St. Peters. She stated that AP & L would probably turn it back on Monday, pending more proof of disability. Harper testified that they had provided transportation and counseling to R.P. She had taken them an AFDC application, and they were receiving $162 in AFDC and food stamps. R.P. went to a friend's house for the bathroom. There was no guarantee that Dick Longing, the mortgagee of the P. family home, would not foreclose on the house.

Phillips testified that DHS had not paid the P. family's rent, nor the water or utility bills, but had provided case work and services to find community providers who could assist. When asked why DHS went "begging and pleading" to community providers for funds, she answered that "[R.P.] did not meet the immediate criteria for any programs that we had to offer her any other kind of assistance." She did not believe that the court intended for DHS to pay directly, "but to insure that it was paid. And, we've made every effort to insure that it would be paid."

Following this testimony, the trial court denied DHS's motion to set aside, and then took up a review of the case and the contempt matter. Kay Forrest, from DHS's office of chief counsel, explained that although Doherty was personally served with the show cause order on "Friday, the 15th," Tom Dalton, as DHS's director, should have been served rather than Doherty. The prosecutor stated that "these errors" in service "will be made proper in the next two days, and we can set this case for the hearing that it...