Porter v. Arkansas Dhhs
| Decision Date | 11 September 2008 |
| Docket Number | No. 08-359.,08-359. |
| Citation | 286 S.W.3d 686,374 Ark. 177 |
| Parties | Mark PORTER v. ARKANSAS DEP'T OF HEALTH & HUMAN SERVICES, and Minor Children, Appellees. |
| Court | Arkansas Supreme Court |
Deborah R. Sallings, Arkansas Public Defender Commission, for appellant.
Chrestman Group, PLLC, by Keith L. Chrestman, attorney ad litem for minor children.
Gray Allen Turner, Office of Chief Counsel, for appellee.
Appellant Mark Porter appeals the circuit court's order adjudicating Porter's three teenage children, D.P., S.P., and J.P., who are appellees, to be dependent-neglected, and the circuit court's order voiding the marriage of his daughter, D.P.
On August 22, 2007, Porter and Diana Rolen,1 Porter's ex-wife and the mother of D.P., J.P., and S.P., appeared in juvenile court for a Family in Need of Services ("FINS") hearing. The FINS hearing was in response to the alleged truancy of their two minor daughters, D.P., age sixteen, and S.P., age twelve.2 At the hearing, the appellee, Arkansas Department of Human Services ("DHS"), presented evidence that on August 10, 2007, Porter and Rolen had consented to the marriage of sixteen-year-old D.P. to Ralph Rodriguez, a thirty-four-year-old man from Mississippi.
Rolen testified at the hearing that she believed Rodriguez to be twenty-five years old. Rolen also testified that when she returned home from a vacation during the previous weekend, D.P. and Rodriguez had departed for Mississippi. Rolen added that she had given her consent to the marriage because of her fear that D.P. would "run off" otherwise.
Porter testified at the same hearing that he was called at work and asked to consent to D.P.'s marriage to Rodriguez. He left work and signed the necessary documents that provided his consent to the marriage. Although he testified that he was concerned about the marriage, he also testified that he was generally unfamiliar with Rodriguez and had not inquired into Rodriguez's past. At that point, the trial judge asked Porter why he had consented to his sixteen-year-old daughter's marriage to someone about whom he knew so little. Porter replied that he "was afraid [D.P.] would run off" and he would "never hear from her again." In response, the trial judge said, "Bad answer."
At the close of the FINS hearing, DHS moved the trial judge that Porter's three children be taken into DHS custody on an emergency basis so that law enforcement could investigate allegations that Rodriguez was a convicted sex offender.3 The trial judge granted the motion.
On August 27, 2007, DHS filed a petition for emergency custody and dependency-neglect relating to D.P., S.P., and J.P. and alleged that the children were at risk due to the "parents' inability to provide supervision and make decisions that protect and keep them safe." DHS further alleged that the parents' consent to D.P.'s marriage to "a stranger from the internet pose[d] a grave threat to all three children under their supervision." The trial judge agreed, and a probable-cause hearing was scheduled for August 28, 2007.
At the probable-cause hearing, Porter, DHS, and the attorneys ad litem for Porter's children stipulated that probable cause existed at the time the emergency hold was taken and that probable cause continued to exist. The trial judge accepted the parties' stipulation and found D.P. and J.P. should remain in DHS custody because their lives were in "immediate danger with the parents as the parents have failed to protect the [children]." On November 30, 2007, the attorney ad litem for D.P. filed a motion to void the marriage between D.P. and Rodriguez. The attorney ad litem asserted that the marriage should be voided because the parents' consent was given in disregard for the health and safety of D.P. and without knowledge of Rodriguez's true age.
At the adjudication hearing, which was held on December 10, 2007, Porter moved the trial judge to strike the motion to void the marriage. Porter also asked the judge to dismiss the proceedings on the basis that she could not consider his consent to the marriage, which was lawful, as a factor for dependency-neglect. Porter further asked that the judge recuse from the case because of comments made at the FINS hearing. The judge denied all of Porter's motions. Upon hearing the testimony of D.P., J.P., the DHS family service worker, D.P.'s psychotherapist, and an investigator from the Crimes Against Children Division of the Arkansas State Police, the trial judge determined D.P., S.P., and J.P. were dependent-neglected. D.P. and J.P. were ordered to remain in DHS custody while S.P. was permitted to remain with her paternal grandmother. The judge, in addition, voided the marriage of D.P. and Rodriguez on the basis that the parental consent was obtained through coercion and misrepresentation of Rodriguez's age and that D.P. lacked the mental capacity to enter into a contract of marriage. Porter now appeals both the finding of dependency-neglect and the court's order voiding the marriage.4
We first address a matter that is relevant to both the issue of the children's determination of dependency-neglect and the voiding of the marriage. That issue concerns the validity of the Arkansas Code Revision Commission's ("the ACRC") amendment to Act 441 of 2007 ("Act 441") entitled "An Act to Amend Provisions of the Arkansas Code to Reconcile Inconsistencies Regarding the Minimum Age to Marry," which raised the minimum age to marry in the State of Arkansas to eighteen years of age. Act 441 reads as follows:
(1) In order for a person who is younger than eighteen (18) years of age and who is not pregnant to obtain a marriage license, the person must provide the county clerk with evidence of parental consent to the marriage.
(2) The county clerk may issue a marriage license to a person who is younger than eighteen (18) years of age and who is not pregnant after the county clerk receives satisfactory evidence of parental consent to the marriage under subsection (c) of this section.
In its codification, however, the ACRC determined that the General Assembly's intent in enacting Act 441 was to set the minimum age to marry at eighteen, the sole exception being in the case of pregnancy of one party when either party was under the age of eighteen. Because of this, the ACRC removed the word "not" in Arkansas Code Annotated § 9-11-102(b)(1) and (2) immediately preceding the word "pregnant." See § 9-11-102(b) (Repl.2008).
Porter urges that the ACRC had no authority to do this and, therefore, his consent to his daughter's marriage, though she was not pregnant, was lawful. The attorney ad litem for D.P., however, asserts that the statute was in force as amended by the ACRC at the time of the marriage, and that because sixteen-year-old D.P. was not pregnant at the time of the marriage, any consent by a parent was not authorized by statute, and her marriage is invalid. The trial judge disagreed and found that the ACRC did not have the authority to modify the law.
The trial judge was correct. The ACRC lacked the authority to amend Act 441 in its codification—which became § 9-11-102(b) —in a manner that changed the meaning and substance of Act 441. This is made clear in the Arkansas Code, which sets forth the powers of the ACRC to amend the Code. See Ark.Code Ann. § 1-2-303(d)(1) (Repl.2008). The only provision that could possibly be read to authorize the revision in this case is § 1-2-303(d)(1)(C), which grants the ACRC the authority to correct "manifest typographical and grammatical errors."
Under the facts before us, the ACRC's revision manifestly changed the substance and meaning of § 9-11-102(b). In its original form, § 9-11-102(b) allows Arkansas children of any age to marry if their parents give consent to the marriage. As amended by the ACRC, the statute sets the minimum age to marry at eighteen but allows only pregnant teenagers to marry with parental consent. ACRC's revision of § 9-11-102(b) exceeded its powers, and, as a result, we hold that the original wording of Act 441 controls this case.5
Porter contends that the trial judge's decision to remove the children from his custody was grounded entirely upon his consent to his daughter's marriage. This reliance was in error, he claims, because his consent was lawful under Act 441. Thus, Porter maintains that the trial judge violated his Fourteenth Amendment due-process right to make child-care decisions. DHS's retort is that the trial judge correctly found that the children were dependent-neglected and that this finding was supported by substantial evidence.
This court reviews findings in dependency-neglect proceedings de novo, but we will not reverse the trial judge's findings "unless they are clearly erroneous." Wade v. Ark. Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). We have said that a finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Id. Furthermore, this court defers to the trial judge's evaluation of the credibility of witnesses. Crawford v. Ark. Dep't of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997).
A "dependent-neglected juvenile" is defined by the Juvenile Code as one "who is at substantial risk of serious harm as a result of" abuse, sexual abuse, neglect, or parental unfitness to the juvenile, or a sibling. Ark.Code Ann. § 9-27-303(18)(A) (Repl.2008). The statute goes on to define "abuse" as "injury to a juvenile's intellectual, emotional, or psychological development as evidenced by observable and substantial impairment of the juvenile's ability to function within the juvenile's normal range of performance and behavior." Ark. Code Ann. § 9-27-303(3)(A)(iii).
The statute also describes "neglect" as:
(i) Failure or refusal to prevent the abuse of the...
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