Kelso v. Ark. Dep't of Human Servs.
2013 Ark. App. 509
Ark. Ct. App.2013Background
- Kelso’s parental rights to seven children were terminated by the Washington County Circuit Court on January 14, 2013; DHS and the minor children’s guardian ad litem were appellees.
- Kelso appeals alleging the trial court relied on a repealed statute to incorporate testimony from prior proceedings and that the record improperly incorporated pleadings and testimony.
- The form termination order incorrectly indicated DHS’s motion to incorporate pleadings/testimony had been filed and referenced a repealed statute; Rule 6-9 governs appeals in dependency-neglect cases.
- Kelso preserved some issues despite no post-trial motions, but the court held Rule 6-9 does not restrict the evidence the trial court may consider in termination proceedings.
- The court held the evidence from prior hearings may be considered in termination proceedings and affirmed the termination; no sufficiency challenge was preserved for review.
- No further factual discussion was necessary because Kelso did not contest best interests or the grounds for termination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by relying on a repealed statute to incorporate prior testimony | Kelso | DHS | No reversible error; evidence from prior proceedings permissible in termination cases. |
| Whether the record on appeal properly includes transcripts from prior hearings per Rule 6-9 | Kelso | DHS | Rule 6-9 does not limit consideration of prior evidence; Smith v. HDHS disapproved but Osborne supports inclusion of prior evidence. |
| Whether Kelso preserved error without post-trial motions | Kelso | DHS | Issues preserved; post-trial motions not required for preservation in dependency-neglect cases. |
| Whether Rule 6-9 limits what may be reviewed in termination proceedings | Kelso | DHS | Rule 6-9 does not bar consideration of evidence from earlier hearings; Smith is distinguishable and not controlling here. |
Key Cases Cited
- Smith v. Arkansas Department of Health & Human Services, 100 Ark. App. 74 (2007) (Rule 6-9 not to limit evidence in termination proceedings; evidence from prior hearings permissible)
- Osborne v. Arkansas Department of Human Services, 98 Ark. App. 129 (2007) (Evidence from prior hearings forms part of subsequent proceedings in termination cases)
- Ashcroft v. Arkansas Department of Human Services, 2009 Ark. 461 (2009) (Post-trial motions do not extend appeal deadlines in dependency-neglect cases)
- Ratliff v. Ark. Dep’t of Health & Human Servs., 371 Ark. 534 (2007) (Rule 4 extensions do not apply to dependency-neglect cases; expedites process)
- Payne v. Arkansas Department of Human Services, 2013 Ark. 186 (2013) (Addressed record supplementation in no-merit cases; distinguished from merits appeal in current case)
- Payne v. Arkansas Dep’t of Human Servs., 2013 Ark. 284 (2013) (Supreme Court vacated the Payne decision cited by this court; governs scope of rule discussions in review)