{ "id": 1906086, "name": "ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Mary FARRIS and Henry Calvin Miller", "name_abbreviation": "Arkansas Department of Human Services v. Farris", "decision_date": "1992-06-15", "docket_number": "92-360", "first_page": "575", "last_page": "583", "citations": [ { "type": "official", "cite": "309 Ark. 575" }, { "type": "parallel", "cite": "832 S.W.2d 482" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "Ark. Code Ann. \u00a7 9-13-201", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "opinion_index": 0 }, { "cite": "270 Ark. 904", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1709305 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/270/0904-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-27-306", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1991, "pin_cites": [ { "page": "(a)(4)" } ], "opinion_index": 0 }, { "cite": "302 Ark. 154", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884240 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0154-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-27-338", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 9-27-310", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 9-27-302", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 9-27-341", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1991, "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 9-27-335", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1991, "pin_cites": [ { "page": "(H)" } ], "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 9-27-306", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "opinion_index": 1 }, { "cite": "Ark. Code Ann. \u00a7 9-27-338", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1991, "opinion_index": 1 } ], "analysis": { "cardinality": 646, "char_count": 14655, "ocr_confidence": 0.89, "pagerank": { "raw": 3.05817907109574e-07, "percentile": 0.8564242548503793 }, "sha256": "9da8cbed93c1d29e059340c04baf3256120354e61bb5d26cb903431b58b4a8ed", "simhash": "1:b6abf244ea155806", "word_count": 2341 }, "last_updated": "2023-07-14T19:13:54.665869+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., concurs." ], "parties": [ "ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Mary FARRIS and Henry Calvin Miller" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThe Arkansas Department of Human Services (DHS) appeals from the White County Chancery Court\u2019s (Juvenile Division) finding that it did not have personal jurisdiction over the appellee, Henry Calvin Miller, for purposes of terminating Mr. Miller\u2019s parental rights. We disagree with the chancellor and reverse.\nIn 1984, Mary Miller, the mother of the children involved in this lawsuit, was killed by her husband, Henry Calvin Miller, in Mississippi. The children, Theresa Farris, Lora Farris, David Miller, and Amanda Miller, were subsequently brought to Arkansas to reside with their maternal grandmother, Mary Linder. Mr. Miller has been continuously incarcerated in the Mississippi State Penitentiary.\nOn December 2, 1989, DHS filed a dependency/neglect petition in the White County Chancery Court pursuant to Ark. Code Ann. \u00a7 9-27-310 (Repl. 1991) and obtained emergency custody of the children based on allegations by Amanda, Lora, and Theresa that they had been sexually abused by relatives of Mary Linder\u2019s husband.\nAfter being served with notice of the dependency/neglect proceeding, Mr. Miller filed a pro se motion for appointment of counsel and was appointed an attorney from Legal Services of Arkansas. Thereafter, Mr. Miller was represented at various adjudication and six-month review hearings. Mr. Miller\u2019s counsel actively participated in the proceedings and voiced Mr. Miller\u2019s objection to returning the children to Mrs. Linder\u2019s home. During the course of an adjudication hearing on March 14, 1990, Mr. Miller objected to the trial court\u2019s jurisdiction over him as to possible termination of his parental rights. No finding was made by the trial court in this regard.\nOn June 18, 1991, some eighteen months after the children were taken into custody, a hearing was conducted to determine a new disposition in the case as required by Ark. Code Ann. \u00a7 9-27-338 (Repl. 1991). DHS asked the court for permission to proceed with termination of Mr. Miller\u2019s parental rights in order to seek adoptive placement for the children. Mr. Miller\u2019s attorney argued, as in the March 14 proceeding and subsequent hearings, that the court did not have personal-jurisdiction over him for this purpose and that Mr. Miller wished the children to remain in long-term foster care.\nBy order filed July 25,1991, the chancellor stated that DHS was required to request that it be allowed to file a petition to terminate parental rights, \u201cthat the department made such a request on this date and that request is hereby denied. . . .\u2019\u2019The court found Mr. Miller did not have sufficient minimum contacts with this state and that the court lacked personal jurisdiction to terminate Mr. Miller\u2019s parental rights. The chancellor further stated the order was considered \u201cfinal\u201d and that if DHS wished to proceed with termination of parental rights, it would have to file a petition in the state of Mississippi. The chancellor approved long-term foster care and scheduled another six-month review hearing.\nDHS now appeals, arguing that by filing pleadings in the case and participating in the proceedings, Mr. Miller entered a general appearance thereby subjecting himself to the chancery court\u2019s jurisdiction.\nBefore discussing the merits, we first address Mr. Miller\u2019s assertion that the July 25 order is not a final, appealable order and is simply an advisory opinion.\nArk. R. App. P. 2 provides in pertinent part:\n(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:\n1. A final judgment or decree entered by the trial court;\n2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action;\nIn order for a judgment to be final, it must dismiss the parties from the court, discharge them from the action, or conclude their rights to the subject matter in controversy. Arkansas Dept. of Human Serv. v. Lopez, 302 Ark. 154, 787 S.W.2d 686 (1990). At the July hearing, DHS\u2019s sole recommendation was that the court approve proceedings to terminate Mr. Miller\u2019s parental rights. Under Ark. Code Ann. \u00a7 9-27-306(a)(4) (Repl. 1991), the juvenile court has exclusive jurisdiction over such proceedings. The chancellor\u2019s order, quoted above, specifically recited that the chancery court lacked personal jurisdiction over Mr. Miller and that any petition for termination of parental rights would have to be filed in Mississippi. This language was more than \u201cadvisory.\u201d The order decisively concluded the right of DHS to file for termination of parental rights in Arkansas and was, therefore, final and appealable.\nOn the merits, we agree with DHS that Mr. Miller waived his objection to personal jurisdiction.\nDHS cites several earlier cases discussing the difference between general and special appearances. We note, however, that this distinction was abolished with the adoption of the Arkansas Rules of Civil Procedure in 1979. See Bituminous, Inc. v. Uerling, 270 Ark. 904, 607 S.W.2d 331 (1980); Ark. R. Civ. P. 12(b) and Reporter\u2019s Notes to Rule 12, No. 7. \u201cAs long as a party either moves to dismiss [or objects for lack of personal jurisdiction] before pleading on the merits or combines the objection to jurisdiction with the response on the merits, the objection is preserved. . . . This procedure obviates the \u2018special appearanee.\u2019 \u201d D. Newbern, Arkansas Civil Practice and Procedure \u00a7 11-3 (1985); Rule 12(b). Otherwise, the defense is waived. Rule 12(h)(1). Another option (not applicable here) would simply be to fail to appear or to contest jurisdiction. Newbern, supra.\nMr. Miller responded on the merits of the case, at least twice, before asserting the court lacked in personam jurisdiction. First, he filed a pro se motion seeking appointment of counsel, shortly after receiving notice of the dependency/neglect proceedings in December 1989. Second, on February 16, 1990, Mr. Miller filed a response to a motion to intervene by a Mr. Charles Gardner. Mr. Gardner asserted he was the putative father of Amanda Miller and that he was a fit and proper person to have custody of the child. Mr. Miller responded that under Arkansas law, his marriage to Amanda\u2019s mother at the time of Amanda\u2019s conception and birth was presumptive of his paternity. He argued Mr. Gardner had no standing to proceed in the action and requested denial of the motion to intervene. In neither of these pleadings did Mr. Miller assert a jurisdictional defense. The record also reflects Mr. Miller was represented at an adjudication hearing on February 14, 1990. The transcript contains only a copy of the court\u2019s order pertaining to this hearing, however, and we cannot determine whether or not Mr. Miller raised the issue of jurisdiction at that time.\nIt was not until March 14,1990, that Mr. Miller, through his attorney, first voiced his objection to personal jurisdiction. On that date, the parties attended another adjudication hearing, extended from the February hearing, to further resolve matters of custody and visitation, etc. Mr. Miller\u2019s counsel conceded the chancery court could adjudicate custody of the children but asserted that if the case proceeded to termination of Mr. Miller\u2019s parental rights, the court had no personal jurisdiction in this regard. This objection was too late.\nMr. Miller argues that under the Uniform Child Custody Jurisdiction Act (UCCJA), Ark. Code Ann. \u00a7 9-13-201 through 227 (Repl. 1991), the trial court was not required to obtain personal jurisdiction over him to determine custody of his children and he has never disputed general jurisdiction for that purpose. Mr. Miller objects to jurisdiction only with regard to the permanent termination of his parental rights, and that objection, he argues, was adequately preserved at the March 14 hearing.\nAs previously mentioned, Ark. Code Ann. \u00a7 9-27-306 gives the juvenile court exclusive, original jurisdiction of proceedings in which a juvenile is alleged to be dependent-neglected and specifically, under provision (a)(4), jurisdiction over proceedings for termination of parental rights, of a juvenile who is under its jurisdiction. In addition, under section (4)(b) and (4)(b)(1), the juvenile court has exclusive jurisdiction \u201cof . . . matters governed by other law which arise during the pendency of the original proceedings under subsection (a)\u201d, which includes \u201cAdoptions under the Revised Uniform Adoption Act, as amended, \u00a7 9-9-201.\u201d\nApparently Mr. Miller considers the two pleadings filed prior to the March 14 hearing as relating only to the issue of custody and therefore his appearance in those pleadings would not effect a waiver of his argument concerning personal jurisdiction to terminate parental rights. Mr. Miller cannot so confine the purpose of his appearances. Once he filed pleadings with the court seeking affirmative relief on the merits of the case, and accepted counsel, who represented him in all phases of the proceedings, he cannot now complain that the court did not have personal jurisdiction over him for the subsequent purpose of terminating his parental rights.\nSince we find Mr. Miller had submitted himself to the jurisdiction of the court, we need not address the parties\u2019 arguments concerning whether Mr. Miller had sufficient minimum contacts with this state.\nReversed and remanded for proceedings consistent with this opinion.\nGlaze, J., concurs.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." }, { "text": "Tom Glaze, Justice,\nconcurring. I agree with the result reached by the majority. First, the majority correctly holds the July 25 order from which this appeal springs is a final one. I believe the order is appealable for two reasons. One, the order resulted from an eighteen-month dispositional hearing required under Ark. Code Ann. \u00a7 9-27-338 (Repl. 1991). This is a \u201cfish or cut bait\u201d hearing in a dependent-neglect proceeding when the court must enter one of the following dispositions:\n(1) Return the juvenile to the parent, guardian, or custodian;\n(2) Authorize a plan for the termination of the parent-child relationship, guardianship, or custody;\n(3) Place the juvenile in long-term foster care; or\n(4) Allow the juvenile to continue in an out-of-home placement for a specified, limited period of time.\nHere, the trial court found Mr. Miller failed to comply with the terms of the court\u2019s case plan and efforts to rehabilitate and reunify the family had failed because Mr. Miller was incarcerated and had not maintained any direct contact with the children. Nonetheless, the court declined to authorize DHS to terminate Miller\u2019s parental rights because the court concluded it had no personal jurisdiction over Miller, since he resided in Mississippi. The court\u2019s ruling in effect concluded DHS\u2019s dependent-neglect proceeding as it pertained to Miller, leaving DHS to appeal the court\u2019s decision. In fact, DHS\u2019s failure to appeal in these circumstances would have left the court\u2019s jurisdictional ruling as the law of the case. In sum, the dispositional hearing and decision is considered one of finality and the trial court\u2019s ruling also was final, considering it had yielded or ceased any jurisdiction the court had over Miller, DHS clearly had the right to challenge those rulings by appeal.\nNext, I agree with the majority decision that once Miller filed pleadings seeking affirmative relief with the trial court, he cannot complain the court did not have personal jurisdiction over him for the purpose of terminating his parental rights. When he entered his appearance in the dependent-neglect proceeding, Miller was made aware that his failure to remedy the conditions causing the out-of-home placement of his children might result in the termination of his parental rights. After DHS gains custody of a juvenile, it must prepare a written case plan within thirty days of the juvenile\u2019s placement. Ark. Code Ann. \u00a7 9-27-335 (Repl. 1991). In accordance with Ark. Code Ann. \u00a7 9-27-335(H) (Repl. 1991), that case plan includes a statement directed to the juvenile\u2019s parent, custodian, or guardian and notifies them as follows:\n(i) Failure to remedy the conditions causing the out-of-home placement of the juvenile may result in termination of parental rights',\n(ii) Termination of parental rights may occur only after notice and a hearing on termination',\n(iii) If the parent, guardian, or custodian disagrees with the terms in the plan, the party may petition the court for resolution of the disagreement, and\n(iv) The parent, guardian, or custodian has a right to notice of any modification of the case plan and the right to petition the court for a hearing on the modification. (Emphasis added.)\nUpon the failure of a parent to correct the conditions causing his or her child\u2019s removal from home, the juvenile court reviewing the dependent-neglect proceeding may then consider DHS\u2019s petition to terminate parental rights, and upon terminating such rights, it may authorize DHS to consent to the adoption of the juvenile. Ark. Code Ann. \u00a7 9-27-341 (Supp. 1991).\nIn sum, under Arkansas\u2019s statutory scheme, a parent is afforded notice shortly after the dependent-neglect proceeding is commenced that the parent\u2019s rights to his or her child may be terminated by the juvenile court if the parent fails to comply with DHS\u2019s case plan as was approved by the court. Such due process having been given Miller in this case, he cannot subject himself only to part of the dependent-neglect proceeding provided by law, but then attempt to avoid the juvenile court\u2019s jurisdiction once the juvenile court determines that he and his children should not be reunified. Miller entered his appearance in these proceedings and the juvenile court had jurisdiction to decide those issues related to dependency-neglect, termination of parental rights and adoption. Id., see also Ark. Code Ann. \u00a7 9-27-306 (Repl. 1991). To construe Arkansas\u2019s Juvenile Code to permit parents to limit, their appearances to one stage of these proceedings would serve only to frustrate a court from achieving the purposes of the Code \u2014 to remove a juvenile from his parents only when his welfare or safety cannot be safeguarded and to assure the juvenile is permanently placed in an approved family home and be made a member of the family by adoption if the juvenile must be permanently removed from his family. Ark. Code Ann. \u00a7 9-27-302 (Repl. 1991).\nFor the foregoing reasons, I join the majority in reversing and remanding this cause for further proceedings.", "type": "concurrence", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Vickie A. Warner, for appellant.", "David J. Manley, for appellee." ], "corrections": "", "head_matter": "ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Mary FARRIS and Henry Calvin Miller\n92-360\n832 S.W.2d 482\nSupreme Court of Arkansas\nOpinion delivered June 15, 1992\nVickie A. Warner, for appellant.\nDavid J. Manley, for appellee." }, "file_name": "0575-01", "first_page_order": 601, "last_page_order": 609 }