Russell v. Ark. Dep't of Human Servs.
2014 Ark. App. 734
Ark. Ct. App.2014Background
- DHS became involved May 2012 after Tara Russell’s drug use and leaving her young child unattended; a case plan was completed and the child (T.R.) was returned to Russell in June 2013 and the dependency-neglect case was closed in September/October 2013.
- A no-contact order had been in place pre-closure preventing David Russell (with prior true findings for sexual and physical abuse) from contact with T.R.; DNA later showed David was not the biological father.
- DHS took emergency custody November 15, 2013 when David violated the no-contact order and appellant tested positive for marijuana; an ex parte emergency custody order and later dependency-neglect adjudication followed (February 28, 2014) with reunification as the goal and concurrent plan of adoption.
- DHS petitioned to terminate Tara Russell’s parental rights (filed April 10, 2014); at the May 12, 2014 termination hearing Russell’s counsel told the court she had decided to consent, but Russell did not appear and the department proceeded seeking involuntary termination.
- The trial court concluded the termination would be involuntary based on appellant’s credibility, untruthfulness, and failure to follow through; the termination order was entered May 28, 2014 and Russell appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court lacked jurisdiction to reopen a previously closed dependency-neglect case and thus the termination was void | Russell: Young prohibits reopening a closed dependency-neglect case; reopening the closed case deprived the court of jurisdiction | DHS: Circuit courts are courts of general jurisdiction; subject-matter jurisdiction existed and reopening argument was not preserved below | Court: Circuit court had subject-matter jurisdiction; reopening objection not preserved, so termination stands |
| Whether the trial court abused its discretion by refusing to allow appellant to voluntarily consent to termination | Russell: She wanted to consent to achieve permanency sooner (citing Rhine) | DHS: Consent must be genuine; consent has different consequences than involuntary termination and appellant was not present to execute consent | Court: No abuse of discretion; consent appeared not genuine, appellant absent, and no prospective adoptive parent ready |
| Preservation of issues on appeal | Russell: (argues reopening error on appeal) | DHS: Issue was not raised below | Court: Failure to raise argument in circuit court waived the issue on appeal |
Key Cases Cited
- Tripcony v. Arkansas School for the Deaf, 403 S.W.3d 559 (Ark. 2012) (discusses subject-matter jurisdiction principles)
- Rhine v. Arkansas Department of Human Services, 278 S.W.3d 118 (Ark. Ct. App. 2008) (circuit-court denial of continuance to permit consent to termination examined)