{ "id": 6143099, "name": "Glee Alan BURT & Elizabeth Burt v. ARKANSAS DEPARTMENT OF HEALTH & HUMAN SERVICES", "name_abbreviation": "Burt v. Arkansas Department of Health & Human Services", "decision_date": "2007-09-05", "docket_number": "CA 06-1088", "first_page": "402", "last_page": "406", "citations": [ { "type": "official", "cite": "99 Ark. App. 402" }, { "type": "parallel", "cite": "261 S.W.3d 468" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "357 Ark. 635", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5402011 ], "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "holding natural-parent preference was not absolute in modification-of-custody case where grandparent had custody for previous five years by virtue of court-ordered guardianship before father filed petition for custody and termination of guardianship" }, { "parenthetical": "holding natural-parent preference was not absolute in modification-of-custody case where grandparent had custody for previous five years by virtue of court-ordered guardianship before father filed petition for custody and termination of guardianship" } ], "opinion_index": 0, "case_paths": [ "/ark/357/0635-01" ] }, { "cite": "364 Ark. 485", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3035404 ], "weight": 2, "year": 2006, "pin_cites": [ { "page": "489-90" }, { "page": "349" } ], "opinion_index": 0, "case_paths": [ "/ark/364/0485-01" ] }, { "cite": "328 Ark. 573", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 50422 ], "weight": 2, "year": 1997, "opinion_index": 0, "case_paths": [ "/ark/328/0573-01" ] }, { "cite": "314 Ark. 92", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1912807 ], "weight": 4, "year": 1993, "pin_cites": [ { "page": "93" }, { "page": "123" }, { "parenthetical": "holding that grandparent whose child's parental rights were terminated had no recognized interest in adoption of grandchildren to warrant intervention as a matter of right" }, { "parenthetical": "holding that grandparent whose child's parental rights were terminated had no recognized interest in adoption of grandchildren to warrant intervention as a matter of right" } ], "opinion_index": 0, "case_paths": [ "/ark/314/0092-01" ] }, { "cite": "357 Ark. 224", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5405212 ], "weight": 2, "year": 2004, "pin_cites": [ { "parenthetical": "upholding maternal grandparent's right to visitation after her daughter's death in spite of father's attempt to terminate the visitation" }, { "parenthetical": "upholding maternal grandparent's right to visitation after her daughter's death in spite of father's attempt to terminate the visitation" } ], "opinion_index": 0, "case_paths": [ "/ark/357/0224-01" ] }, { "cite": "202 S.W.3d 485", "category": "reporters:state_regional", "reporter": "S.W.3d", "year": 2005, "pin_cites": [ { "parenthetical": "affirming circuit court's award of guardianship to maternal grandmother over biological father who had never been married to mother after death of mother where child had always lived with mother in home of maternal grandmother" } ], "opinion_index": 0 }, { "cite": "360 Ark. 445", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5460571 ], "year": 2005, "pin_cites": [ { "parenthetical": "affirming circuit court's award of guardianship to maternal grandmother over biological father who had never been married to mother after death of mother where child had always lived with mother in home of maternal grandmother" } ], "opinion_index": 0, "case_paths": [ "/ark/360/0445-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-13-101", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2005, "pin_cites": [ { "parenthetical": "authorizing intervention by a grandparent in a custody proceeding of an action for divorce under certain defined circumstances" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 9-28-503", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 2002, "pin_cites": [ { "parenthetical": "requiring DHHS to attempt to place a child with a relative when placing the child in foster care" } ], "opinion_index": 0 }, { "cite": "349 Ark. 371", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1513748 ], "weight": 2, "year": 2002, "opinion_index": 0, "case_paths": [ "/ark/349/0371-01" ] }, { "cite": "661 S.W.2d 361", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 1742345, 1742361 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "362" }, { "page": "362" } ], "opinion_index": 0, "case_paths": [ "/ark/281/0045-01", "/ark/281/0042-01" ] }, { "cite": "281 Ark. 45", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1742345 ], "weight": 2, "year": 1983, "pin_cites": [ { "page": "46" }, { "page": "46" } ], "opinion_index": 0, "case_paths": [ "/ark/281/0045-01" ] } ], "analysis": { "cardinality": 486, "char_count": 8942, "ocr_confidence": 0.757, "pagerank": { "raw": 8.203483792463421e-08, "percentile": 0.47623317035085827 }, "sha256": "501ddaa9f5382c6050d67dc8769bdd029b45218509962d0cbe67bcee371a8cd4", "simhash": "1:d7a5ce63e832c747", "word_count": 1447 }, "last_updated": "2023-07-14T20:09:21.655097+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Marshall and Heffley, JJ., agree." ], "parties": [ "Glee Alan BURT & Elizabeth Burt v. ARKANSAS DEPARTMENT OF HEALTH & HUMAN SERVICES" ], "opinions": [ { "text": "Sam Bird, Judge.\nElizabeth and Glee Alan Burt appeal the Pulaski Circuit Court\u2019s denial of their motion to intervene in adoption proceedings of their grandchildren, the natural-bom children of their daughter, Jennifer Burt. Because Jennifer Burt\u2019s parental rights were terminated on February 27, 2002, and upheld on appeal by mandate of this court on May 21,2003, we affirm the circuit court\u2019s denial of appellants\u2019 motion to intervene.\nThe children who are the subject of appellants\u2019 motion to intervene are J.B., born on March 16, 1992; M.B., born on February 19, 1993; and G.B., born on March 18, 1994. J.B. and M.B. are presently in the custody of the Arkansas Department of Health and Human Services (DHHS), and G.B. has already been adopted. This case began when the children were placed in foster care by DHHS in August 2000. The record reflects that, before they were placed in foster care, they periodically lived in the home of appellants. We note, however, that the record contains no evidence that appellants had ever been granted court-ordered custody, guardianship, or visitation rights.\nAt a permanency-planning-and-review hearing held on August 23, 2001, the circuit court changed the goal of the case from reunification with Jennifer Burt, the children\u2019s mother, to adoption. Subsequently, on November 2, 2001, appellants filed their first motion to intervene to obtain custody of the children. The circuit court denied the motion on November 20, 2001, finding that permissive intervention pursuant to Ark. R. Civ. P. 24 was not applicable because there were other avenues open to appellants to address their request. The circuit court mentioned that one avenue was to request DHHS to perform a home study for possible placement of the children in their home, which the court noted had already been ordered at a hearing on June 14, 2001.\nThe home study, which was performed on September 28, 2001, indicated that appellants\u2019 two-bedroom, one-bath home was very small and inadequate to accommodate all of Jennifer Burt\u2019s children. The preparer of the home study also opined that, in order for appellants\u2019 home to be considered, the home would need to be child-proofed, appellants\u2019 work schedules would need to be changed to allow for supervision of the children, and appellants would need parenting classes. At some point before the circuit court terminated Ms. Burt\u2019s parental rights, the court determined that it was contrary to the best interest of the children to be placed in appellants\u2019 custody, concluding that the children had suffered neglect, inadequate supervision, and inadequate parenting when they lived with appellants. On February 27, 2002, the circuit court terminated Jennifer Burt\u2019s parental rights to J.B., M.B., and G.B.\nFour years later, on February 14, 2006, appellants filed a second motion to intervene, claiming that they \u201cdesire[d] to have the minor children reside in their home permanently\u201d and alleging that they had been denied the right to a hearing on this issue. The circuit court denied appellants\u2019 motion, stating that the parental rights of the mother had been terminated, that the court had already determined that it was contrary to the best interest of the children to be placed with appellants, and that the court had issued two no-contact orders, which remained in full force and effect, restraining appellants from having contact with the children. Appellants filed this appeal.\nThere are two means by which a non-party may intervene in a lawsuit: as a matter of right and by permission. The former cannot be denied, but the latter is discretionary, the denial of which will be reversed only if that discretion is abused. Schacht v. Garner, 281 Ark. 45, 46, 661 S.W.2d 361, 362 (1983). Rule 24(c) sets forth the method for requesting intervention and requires the party seeking intervention to serve a motion stating the grounds therefor accompanied by a pleading setting forth the claim or defense for which intervention is being sought. Ark. R. Civ. P. 24(c).\nAppellants did not indicate in either of their motions to intervene whether they were asserting intervention as a matter of right or by permission. Nor did they accompany their motions with a pleading suggesting that they were seeking intervention as a matter of right. We will not make their case for them. Therefore, we will treat the motion as one for intervention by permission and will reverse the circuit court\u2019s denial of their motion only if the court abused its discretion. See Ballard v. Garrett, 349 Ark. 371, 78 S.W.3d 73 (2002); Schacht, 281 Ark. at 46, 661 S.W.2d at 362. We note, however, that our disposition of this case would remain the same were we to treat their motion as requesting intervention as a matter of right.\nOn appeal, appellants cite several statutes and cases to support their position that their motion for intervention should have been granted. All of these statutes and cases concern the rights of grandparents of children whose parents\u2019 rights have not been terminated. See, e.g., Ark. Code Ann. \u00a7 9-28-503 (Repl. 2002) (requiring DHHS to attempt to place a child with a relative when placing the child in foster care); Ark. Code Ann. \u00a7 9-13-101 (Supp. 2005) (authorizing intervention by a grandparent in a custody proceeding of an action for divorce under certain defined circumstances); Freeman v. Rushton, 360 Ark. 445, 202 S.W.3d 485 (2005) (affirming circuit court\u2019s award of guardianship to maternal grandmother over biological father who had never been married to mother after death of mother where child had always lived with mother in home of maternal grandmother); Hunt v. Perry, 357 Ark. 224, 162 S.W.3d 891 (2004) (upholding maternal grandparent\u2019s right to visitation after her daughter\u2019s death in spite of father\u2019s attempt to terminate the visitation); Grosser v. Henson, 357 Ark. 635, 187 S.W.3d 848 (2004) (holding natural-parent preference was not absolute in modification-of-custody case where grandparent had custody for previous five years by virtue of court-ordered guardianship before father filed petition for custody and termination of guardianship).\nNone of these statutes or cases is applicable to this case. Each presupposes that the grandparents are still grandparents. In other words, in each of these cases and statutes the parents\u2019 rights have not been terminated. Under Arkansas law, grandparents\u2019 rights, to the extent they have rights, are derivative of their son\u2019s or daughter\u2019s parental rights. Suster v. Ark. Dep\u2019t of Human Servs., 314 Ark. 92, 93, 858 S.W.2d 122, 123 (1993). In Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914 (1997), an adopted child\u2019s paternal grandmother sought visitation rights after her son had already consented to the child\u2019s adoption by another person. The court in Vice held that, where a natural parent consents to the adoption of his or her child by another person, the consenting parent\u2019s relatives lose their legal right to visitation because such rights are derivative of the consenting parent\u2019s rights and likewise are terminated when the parent\u2019s rights are ended. Id; see also Henry v. Buchanan, 364 Ark. 485, 489-90, 221 S.W.3d 346, 349 (2006).\nTo the extent that appellants had any rights to custody of, or visitation with, these children, they lost them in 2002 when their daughter\u2019s parental rights were terminated. There is no evidence in the record that appellants have ever attempted to adopt these children. Finally, we note that the circuit court determined before it terminated Jennifer Burt\u2019s parental rights that it was contrary to the best interest of the children to be placed with appellants. In light of these facts and Arkansas law, we hold that the circuit court did not abuse its discretion in denying appellant\u2019s motion to intervene.\nAffirmed.\nMarshall and Heffley, JJ., agree.\nThe home study stated that appellants\u2019 home was being considered for placement of seven of Jennifer Burt\u2019s children. The record on appeal does not indicate the disposition of the case for the four children who are not the subject of this appeal.\nWe note that appellants did not provide sufficient parts of the record to enable us to review the order or transcript making this determination, but the circuit court stated in its denial of appellants\u2019 second motion to intervene, the subject of this appeal, that this determination was made.\nSee Suster v. Ark. Dep\u2019t of Human Servs., 314 Ark. 92, 858 S.W.2d 122 (1993) (holding that grandparent whose child\u2019s parental rights were terminated had no recognized interest in adoption of grandchildren to warrant intervention as a matter of right).", "type": "majority", "author": "Sam Bird, Judge." } ], "attorneys": [ "Larry J. Steele, for appellants.", "Gray Allen Turner, Dep\u2019t of Human Servs., Office of Chief Counsel, for appellee.", "Kendall AJ. Sample, attorney ad litem." ], "corrections": "", "head_matter": "Glee Alan BURT & Elizabeth Burt v. ARKANSAS DEPARTMENT OF HEALTH & HUMAN SERVICES\nCA 06-1088\n261 S.W.3d 468\nCourt of Appeals of Arkansas\nOpinion delivered September 5, 2007\nLarry J. Steele, for appellants.\nGray Allen Turner, Dep\u2019t of Human Servs., Office of Chief Counsel, for appellee.\nKendall AJ. Sample, attorney ad litem." }, "file_name": "0402-01", "first_page_order": 438, "last_page_order": 442 }