{ "id": 12023195, "name": "John GULLICK v. ARKANSAS DEPARTMENT of HUMAN SERVICES", "name_abbreviation": "Gullick v. Arkansas Department of Human Services", "decision_date": "1996-11-04", "docket_number": "95-830", "first_page": "475", "last_page": "481", "citations": [ { "type": "official", "cite": "326 Ark. 475" }, { "type": "parallel", "cite": "931 S.W.2d 786" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "382 Pa. Super. 166", "category": "reporters:state", "reporter": "Pa. Super.", "case_ids": [ 463059 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/pa-super/382/0166-01" ] }, { "cite": "42 U.S.C. \u00a7\u00a7 670", "category": "laws:leg_statute", "reporter": "U.S.C.", "opinion_index": 0 }, { "cite": "42 U.S.C. \u00a7 671", "category": "laws:leg_statute", "reporter": "U.S.C.", "pin_cites": [ { "page": "(a)(15)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 9-27-328", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1993, "pin_cites": [ { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "298 Ark. 256", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1889845 ], "weight": 2, "year": 1989, "opinion_index": 1, "case_paths": [ "/ark/298/0256-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-27-343", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 1 }, { "cite": "41 Ark. App. 146", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6139069 ], "weight": 2, "year": 1993, "opinion_index": 1, "case_paths": [ "/ark-app/41/0146-01" ] }, { "cite": "282 Ark. 227", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1740803 ], "weight": 2, "year": 1984, "opinion_index": 1, "case_paths": [ "/ark/282/0227-01" ] }, { "cite": "Ark. Code Ann. \u00a7 9-27-328", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1993, "opinion_index": 1 } ], "analysis": { "cardinality": 676, "char_count": 13778, "ocr_confidence": 0.81, "pagerank": { "raw": 1.2240919645422112e-07, "percentile": 0.6026272188069652 }, "sha256": "12748035c8f34ac957a05c4f9de9091da1b57f1520797c3bc335bcfeeaec72f8", "simhash": "1:feb21b6d69332de6", "word_count": 2311 }, "last_updated": "2023-07-14T22:12:03.555215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze, J., concurs." ], "parties": [ "John GULLICK v. ARKANSAS DEPARTMENT of HUMAN SERVICES" ], "opinions": [ { "text": "BRADLEY D. Jesson, Chief Justice.\nThis appeal is brought by John Gullick, the father of Angela Gullick. He appeals from two orders of the juvenile division of chancery court. The first order, entered April 17, 1995, placed Angela in the custody of the Department of Human Services. The second order, entered April 24, 1995, denied Mr. Gullick\u2019s petition for a writ of habeas corpus seeking Angela\u2019s return to parental custody. We affirm.\nAngela is the younger of two daughters of John and Shariee Gullick. The girls have lived with their father most of their lives, their mother not having been present for many years. The older daughter, Julia, was voluntarily placed into foster care by John Gullick in 1993. In November of 1994, the Department of Human Services began an investigation into allegations that Mr. Gullick had physically abused Angela. The investigation revealed that on November 10, 1994, Angela, along with her stepmother Debbie Gul-lick and Debbie\u2019s child Amanda, returned home from a meeting to find John Gullick enraged and possibly intoxicated. Mr. Gullick wrapped a jacket around Angela\u2019s neck and tried to choke her. Angela was twelve years old at the time. She is also blind.\nDebbie Gullick left the home the next day, taking both Amanda and Angela with her to a women\u2019s shelter in Fayetteville. Mrs. Gullick found her own place in December and moved out of the shelter. During this period, she maintained physical custody of Angela. Divorce proceedings began between Debbie and John Gul-lick. During the course of those proceedings, John Gullick asked the chancellor to return custody of Angela to him. Debbie Gullick, having no biological relation to Angela, was required by the chancellor to return Angela to her father. The chancellor made his ruling on Wednesday, January 25, 1995. That same day, the Washington County prosecutor\u2019s office filed a Family In Need of Services (FINS) petition in the juvenile division of chancery court. The petition called for a hearing the following Monday and prayed that the court order disposition of the care, custody and control of Angela. By amended petition on January 27, the prosecutor incorporated the affidavit of Debbie Gullick, which described the November 10 incident.\nAfter a request for a continuance by John Gullick, the hearing was held on Thursday, February 2, 1995. The prosecutor offered substantial evidence that John Gullick wrapped a jacket around Angela\u2019s neck and tried to choke her on November 10. There was also evidence that John Gullick had an alcohol-dependency problem, had threatened witnesses regarding their testimony, and had attempted suicide. Finally, Ms. Weller, a child advocate at the Fayetteville women\u2019s shelter, testified that Angela had told her that she would run away if sent back to her father and that she would rather kill herself than be returned to his custody.\nAt the close of the hearing, the prosecutor and the guardian ad litem recommended that Angela be placed in foster care. The prosecutor told the court that she was most concerned about Angela\u2019s immediate safety and that she considered the situation an emergency. The judge declared that he wanted to put Angela in a safe place and was especially mindful of Angela\u2019s statements that she might run away or kill herself if returned to her father\u2019s custody. He ordered Angela placed into the custody of the Department of Human Services and ordered the preparation of a case plan with an eye toward reunification of the family.\nThe court\u2019s ruling was memorialized in an order entered April 17, 1994. In the interim between the hearing and the entry of the order, John Gullick filed a petition for a writ of habeas corpus. In the petition, he claimed that the court was required by Ark. Code Ann. \u00a7 9-27-328 (Repl. 1993) to make specific findings before removing a child from a parent\u2019s custody and that, in the absence of such findings, custody of Angela should be returned to him. The court denied the petition by order entered April 24, 1995.\nOn appeal, John Gullick argues that a juvenile court cannot deprive him of the custody of his child unless the court takes the steps and makes the findings mandated by \u00a7 9-27-328(a). That statute, as it appeared on February 2, 1995, read as follows:\nBefore a juvenile may be removed from the parent, guardian, or custodian of the juvenile by order of a juvenile court, excluding commitments to youth services centers, the court shall order family services appropriate to prevent removal or to reunify the family and, in its orders, make these specific findings:\n(1) Whether removal of the juvenile is necessary to protect the juvenile, and the reasons therefor;\n(2) Which family services were made available to the family before removal of the juvenile;\n(3) What efforts were made to provide those family services relevant to the needs of the family before the removal of the juvenile;\n(4) Why efforts made to provide the family services described did not prevent removal of the juvenile; and\n(5) Whether efforts made to prevent removal of the juvenile were reasonable, based upon the needs of the family and the juvenile.\nThese findings are not to be viewed as mere formalities. Congress requires that, before a state may be eligible for federal matching funds, the removal of a child from the home must be the result of a judicial determination that \u201creasonable efforts\u201d were made, prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from the home and to make it possible for the child to return to his home. See 42 U.S.C. \u00a7 671(a)(15) and \u00a7 672(a)(1). Public Law 96-272, popularly known as the Adoption Assistance and Child Welfare Act of 1980, 42 U.S.C. \u00a7\u00a7 670 - 676 (1985 and Supp. 1996), was passed by the Congress for the purpose of shifting emphasis in federal programs toward preventive services to allow children to remain safely at home rather than being placed in foster care. See generally In-Interest of S.A.D., 382 Pa. Super. 166, 555 A.2d 123 (1989). However, Arkansas law recognizes that there are certain situations in which it may be impractical or unwise to leave a child in the home. Under Ark. Code Ann. \u00a7 9-27-328(b), the federal requirement that reasonable efforts be made to prevent removal of a child from the home is deemed to have been met in the following situation:\nWhere the state agency\u2019s first contact with the family occurred during an emergency in which the juvenile could not safely remain at home, even with reasonable services being provided, the responsible state agency shall be deemed to have made reasonable efforts to prevent or eliminate the need for removal.\nGiven the evidence in this case, Angela Gullick could not remain safely at home with her father. While living with him on November 10, she had been subject to serious and frightening physical abuse. Further, there is no question that the situation necessitating her removal constituted an emergency. After the November 10 incident, Angela was immediately removed from the household under the protection of her stepmother. When it became clear during the divorce proceeding that Angela would be returned to her father\u2019s custody, the prosecutor\u2019s office took prompt action, filing a petition and seeking an immediate hearing.\nMr. Gullick argues that the state agency\u2019s \u201cfirst contact\u201d was not during an emergency, as required by subsection (b). He points to the fact that the DHS began investigating the November 10 incident shortly after it occurred and that this \u201cfirst contact\u201d occurred long before a petition was filed by a state agency. Even if we were to consider the investigation to be the \u201cfirst contact\u201d for purposes of this statute, the investigation occurred as the result of an emergency situation, that being the serious physical abuse of the child by her father. In any event, the first affirmative action taken by a state agency for the purpose of seeking a custody disposition occurred on January 25, 1995, the very day when it appeared that Angela would be returned to her father\u2019s custody. Under the disturbing circumstances of this case, such a return to parental custody constituted an emergency.\nAffirmed.\nGlaze, J., concurs.\nThe 1995 amendments to \u00a7 9-27-328 contained in Acts 533 and 1337 of 1995, were not in force at the time of the February 2, 1995 hearing.\nThe Department of Human Services filed a motion to strike a portion of the appellant\u2019s record and abstract. That motion is-rendered moot by our decision.", "type": "majority", "author": "BRADLEY D. Jesson, Chief Justice." }, { "text": "Tom Glaze, Justice,\nconcurring. I concur. At oral argument, the question was raised concerning whether a final order had been entered in this cause below from which appellant John Gullick could bring an appeal. In my opinion, there was not.\nThe parties agree that this action started as a family in need of supervision (FINS) case, and the custody of Gullick\u2019s child was placed with the Department of Human Services (DHS). In such cases, DHS is to produce a case plan within thirty days of placement and the case is subject to a periodic six-month court review until a permanent order of custody is entered or the juvenile is returned to the parent or the court has discontinued orders for family services. See Ark. Code Ann. \u00a7\u00a7 9-27-328, 9-27-332, 9-27-337 (Supp. 1995).\nThis court has held many times that an order, decree, or judgment must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject matter in controversy before it is appealable. This court has also held that a trial court\u2019s temporary order awarding custody of a child is not appealable if such custody case remains pending subject to a trial on the merits. See Chancellor v. Chancellor, 282 Ark. 227, 667 S.W.2d 950 (1984); Ark. R. App. P. 2(a). Citing the Chancellor case, the court of appeals in Jones v. Jones, 41 Ark. App. 146, 852 S.W.2d 325 (1993), stated the rule as follows:\n. . . the Arkansas Supreme Court clarified the law regarding appealability of temporary child custody orders by holding that a mere temporary award of custody pending trial on the merits is not appealable, but an award of custody, even if expressly stated to be temporary, is final for purposes of appeal if the issue of custody was decided on the merits and the parties have completed their proof. In the case at bar, the appellant\u2019s motion to expedite is grounded on her assertions that she had not yet completed her proof in this case. Therefore, the decree in this case is a temporary award pending trial on the merits, and is nonappealable pursuant to Chancel-lory. Chancellor.\nIn the present case, the Washington County Juvenile Court entered an order dated April 17, 1995, finding (1) the child and her family are in need of services, (2) the child should be placed with DHS, (3) Mr. Gullick was directed to perform a number of duties (submit an affidavit of financial means, sign a release for certain information, and submit to drug testing), and (4) the court would conduct periodic six-month reviews. Obviously, since the trial court ordered certain directives to be done and other hearings to be conducted in the future, the order was temporary and under the rationale of the Chancellor and Jones cases, was not appealable.\nI have looked elsewhere without success to determine if there might be a case, rule, or statute under which a parent might appeal a temporary custody order entered in a FINS or dependent-neglect case. Instead, I find that Ark. Code Ann. \u00a7 9-27-343(a) (Repl. 1993), requires that all appeals from juvenile court shall be made to the Arkansas Supreme Court or Court of Appeals in the same time and manner provided for appeals from chancery court. (Emphasis added.) Thus, \u00a7 9-27-343(a) appears consistent with the rule set out above in the Chancellor and Jones cases. I would further point out that Chancellor in particular cited Ark. R. App. P. 2(a) when holding that a temporary custody award is not a final appealable order.\nAt oral argument, Gullick referred to the language in \u00a7 9-27-343(c) and suggested that that subsection anticipates an appeal of an out-of-home placement decision, since it provides that, \u201cif a final decision from the appellate court is not rendered within six months from the date of entry of the notice of appeal, the Director of the Administrative Office of the Courts shall designate either a foster-care magistrate or a juvenile judge of another court to conduct a review of the case.\u201d While that language is bothersome and confusing, I would submit subsection (c), as enacted under Act 273 of 1989, was a part of the General Assembly\u2019s failed effort to provide appointed magistrates (or masters) to hear juvenile cases. This court held that the appointment of such officials constituted an unauthorized grant of legislative authority and an impermissible creation of what amounts to substitute judges. See Hutton v. Savage, 298 Ark. 256, 769 S.W.2d 394 (1989).\nFor the reasons stated above, I believe Gullick\u2019s appeal should be dismissed, since he appealed from a nonappealable order. At the same time, I would like to suggest that this court\u2019s Committee on Civil Practice or the General Assembly study and determine if, for appeal purposes, a temporary custody order entered in a juvenile court\u2019s FINS or dependent-neglect hearing should be considered differently from one entered in a chancery court proceeding. If so, a rule or law should be promulgated or enacted clearly providing for such an appeal.\nRule 2(a) sets out what orders may be appealed from a circuit, chancery, or probate court.", "type": "concurrence", "author": "Tom Glaze, Justice," } ], "attorneys": [ "Steven S. Zega, for appellant.", "Deborah C. Reagan, for appellee." ], "corrections": "", "head_matter": "John GULLICK v. ARKANSAS DEPARTMENT of HUMAN SERVICES\n95-830\n931 S.W.2d 786\nSupreme Court of Arkansas\nOpinion delivered November 4, 1996\nSteven S. Zega, for appellant.\nDeborah C. Reagan, for appellee." }, "file_name": "0475-01", "first_page_order": 509, "last_page_order": 515 }