*1 if that debtor created debtor be from asserting usury may estopped Grisham, v. FordMotor Credit Co. See infirmity. McElroy supra; Hutcherson, The seminal case on this Blanks v. v. supra. point, Co., Trust established that a debtor AmericanSouthern supra, merely a transaction if the debtor “countenances” may estopped known to be That occurred in instant case. usurious. certainly reverse the of the trial court and remand for We judgment of a consistent with this entry judgment opinion.
ARKANSAS DEPARTMENT OF HUMAN SERVICES v.
R.P.
97-767
Supreme delivered Opinion June denied rehearing July [Petition 1998.] *5 Hill, Gen., K. Att’y by: Kelly Deputy Winston Bryant, Att’y Gen., intervernor. case, In this juve- Imber, Clinton Annabelle Justice. of Human Services
nile court ordered the provide Department utilities, to a electric and water family housing, including adequate a of time in need of services. Following during period adjudicated on, the trial court held the utilities were not turned back which DHS, in willful con- well a DHS Sandi as as Doherty, employee, for various reasons of its order. On appeal, argues tempt utili- it to restore the the trial court lacked the to order authority the trial contend that ties. both DHS Doherty Additionally, of court. We affirm as court erred in them holding modified. matter as a pro- underlying began probation-revocation in the matter on on a R.P. At hearing August
ceeding juvenile, P., mother, that all utilities Therese R.P.’s explained had been shut off. The home prosecutor expressed interest in the matter to family-in-need-of-services converting trial ad litem. The as did R.P.’s opined guardian petition, dismissed, and that a needed to be revocation petition be filed. The court should family-in-need-of-services petition serv- that DHS would be ordered to also stated provide supportive *6 ices and to do a needs assessment for the R.P. was released family. 13, 1996, into the of her mother. On custody an order August was entered R.P.’s with the dismissing nota- delinquency petition tion that “FINS case to be with services offered opened supportive 15, DHS.” On a by FINS August filed petition by prosecutor.
aAt on hearing September prosecutor explained the P. had family without water or gone had R.P. electricity. school, missed already four-and-a-half in the days prosecutor’s due to “dire circumstances” opinion, the lack of trans- including and water. portation, electricity, Therese P. testified that had they no or water. She had electricity for and food applied disability caseworker, Heather a stamps. DCFS stated Harper, that DHS could not the full utilities, amount of the water pay or “It’s outra- “We were geous.” but we can’t willing full help, pay amount.” She had advised Therese P. where she could for go other than DHS. The help trial court concluded the hearing by that the P. finding was a family need of services.
At a on Pam Cooper, Harper’s super- visor, had tried explained they and had helр family, provided had also transportation. tried to They put money on the together utilities from but the community providers, bills were several hundred dollars. She stated that it was her under- standing “Judge Reynolds us to expected their bills for And, them. I have no that. way I’ve talked accomplish it, area my occasions, about on two manager different and there’s — n we don’t have just So, to do that. we’ve done budget what we can.” P., to Therese
According would turn light her company half, back on if she lights $268. R.P. told the paid trial court that the lack of was a electricity because the problem clock wind-up she had did not work well and she was late for school. Harper stated that had made an they with the medicaid arrangement office as well as a transportation, number of referrals and contacts regarding utility problems. According water Harper, $550, bill was which had been reduced the water company $660. from leak, the hоme had Apparently, leading high she would whether litem asked R.P. ad bills. water guardian without heat current home or in her home rather be in foster would rather water, stay that she and R.P. expressed and running her current home. *7 to order that it was stated going The trial court ultimately on, back turned water and electricity to for the DHS having pay cus- to in the was R.P. that the alternative place only explaining stated that if DHS a DHS Brian attorney, of DHS. Rogers, tody “I the issue of should raise to something, was ordered pay directly to a directly state agency immunity ordering sovereign possible to a a case. we’re not actually when party to for something, pay “Sov- So, The trial court I’ve raised that issue now.” responded: order, Well, I some- should clarify ereign immunity? perhaps what, for housing direct that adequate and provide [DHS] and An order with water electricity.” facilities family, including matter, FINS a full review of the entered reflects on Seрtember is “Additional orders” sets a date the next review. Within and for is to a notation provide adequate handwritten providing “[DHS] — water and electricity.” for including housing family] [P. filed motion to set aside this order DHS On October motion, In its P. 60(c) 59(a)(6). to Ark. R. Civ. pursuant State, its and that “The or DHS asserted sovereign immunity, funds not not be to appropriated may compelled expend agencies, State Arkansas.” General Assembly by ad litem raised At a on October guardian had not been Rogers issue that court-ordered services provided. stated that DHS had some services. Harper provided responded funds, to and recited had calls that she made trying get phone had to obtain Accord- what she done housing. adequate to take the water turned $400 it was get ing Harper going $268 that take back on. P. stated it would Therese get on, $550. remembered turned back but Harper electricity Harper Faulkner for $3000 said that was County “preven- apprоpriated care, this would come under.” Freda tion of foster which is what P. did DHS area said that the supervisor, Cruse-Phiflips, that because the child was not meet the criterion for money, risk from the home. at of removal
The trial court asked what she had done to out Harper carry 30 order. She said she told her (at supervisor the time Pam who in turn called the area manager Cooper), She an e-mail area back from the Sandi got approval. manager, not to it. Doherty, the decision saying pay Phillips explained outside the boundaries of the go “policy” governs expend- itures of state and federal is left to “Ms. or to Tom Jones, money Dalton, or even the one of the governor,” perhaps primary considerations is whether the child was at From risk. everything see, she could the child risk was not at of removal. The trial court Dalton, asked whether from to which approval sought Phillips $800, answered no. later if $600 said that it was or Phillips that, $1700, could if but the bills were it could not. Harper stated that bills were over $1300.
The trial court announced that it would issue a show cause order for for failure to abide the court’s order. The Doherty *8 court asked if he could service. Rogers stated that accept Rogers he like a would and he would it to but he copy provide Doherty, would also like her for to be served. The trial court personally “all and then stated responded that “where we need right[,]” to here” $668 from is for to go the get paid utilities turned get back on.
The trial then court asked if there was reason Phillips that any DHS was not the $660 She going pay immediately. responded that it exceeds what she or a would be allowed county supervisor so it would approve, fur- require Doherty’s approval. Phillips ther testified that “her communication that she has E-mail from — — 26th, to Pam as of was there Cooper, that was no rеason to this bill. I’mSo not sure that it is a matter pay of amount to her. I will have to with her and discuss what the get Court’s is and see we ruling today what can do.”
The record 30, reflects a show-cause order dated October 12, and filed on November and show directing Doherty appear November, cause “on the of 21st day at 2:00 to show p.m. cause she should not be held in of why court and contempt pun- ished On November the trial held a accordingly [.]” in the matter. testified that she had called numer- Harper $347 had obtained for and P. family, ous regarding agencies CAPCA, Cross, from Red $71.50 from $200 the AP&L bill: that St. Peters. She stated and from $50 from St. $21.50 Joe, more back on Monday, turn it pending AP&L would probably had that trans- testified they provided of disability. Harper proof taken them an AFDC She had and to R.P. counseling portation and AFDC food $162 were receiving and they application, the bathroom. There house for R.P. went to friend’s stamps. of the P. that Dick Longing, mortgagee was no guarantee home, house. not on the would foreclose rent, that had not P. family’s testified Phillips paid bills, case and had work serv- the water or but provided nor utility asked who could assist. When to find community providers ices to community DHS went “begging providers why pleading” funds, meet immediate did not she answered that “[R.P.] her other kind we had to offer criteria for any any programs did believe that the court intended for She assistance.” And, it was we’ve “but to insure that paid. DHS to directly, to insure that it would be made effort every paid.” the trial court denied DHS’s this Following testimony, aside, to set and then took a review the case motion up Forrest, from office chief coun- matter. DHS’s Kay contempt sel, served with although Doherty explained personally 15th,” Dalton, as order on Tom show cause “Friday, director, been served rather than DHS’s should have Doherty. in service “will be made stated “these errors” prosecutor in the next two and we can set case for hear- days, proper that it deserves.” The matter was then continued to ing *9 5. discussed the issue whether the December The parties again back court stated utilities were to turned on. trial going And, the Court are in effect. for the that “the orders of previous clarification, needed, the is to if is any Department purpose cash to the for the of establish- assistance purposes provide and water the home in which are to electricity they currently ing or other housing.” living providing adequate 4, court entered an order December the trial denying On aside, shows that the same DHS’s motion to set and record day 526 Dalton,
show-cause orders were issued for Tom Doherty, Beverly and Ward. This show-cause order Jones, Boyd on provided 30, DHS and its were ordered to cash assist- September agents pay ance for and water R.P. in the electricity home which she was or other “That tо date living provide housing. has [DHS] failed and refused to said amounts.” The order directs DHS pay Dalton, Ward, and Tom its agents, Beverly Jones, Boyd Sandy to on 11 December to show Doherty cause. Dal- appear Although ton, and Ward were Jones, served with personally (as well as Ward Doherty by at Decem- telephone), only appeared ber 11 hearing.
At the on December hearing Forrest stated that DHS Kay funds were to used restore the P. utilities on November family’s 25. former DCFS in Faulkner Cooper, testi- supervisor County, fied time, that she attended the At she September hearing. understood DHS was ordered to electric bill and pay past-due water bill. After the past-due she e- September hearing, mailed her Sandi court had supervisor, Doherty, advising to ordered DHS provide received an adequate housing. Cooper e-mail back her Brian to ask instructing to file immedi- Rogers ate and not to the bills. e-mail appeal, pay asked Doherty’s how she and the mother Cooper interpreted adequate housing. a face-to-face conversation with During on October Doherty clarified that she the order Cooper meant that thought DHS was get water turned on. In electricity Cooper’s opinion, R.P. was at risk at the time of the 30 order. September testified that on sometime 30 or
Phillips thereaf- ter, she became aware of a court order to hous- provide adequate utilities and ing, water. She told including that R.P. did Cooper not meet the criteria for cash assistance and that she would have to go kind of waiver to that Doherty get any program. Cooper e-mailed and she indicated that Doherty, she was not to use “those funds” to the bills. at the Phillips present on November when the trial court found that child was at risk. “Her order” “our and therefore “we superseded policy,” didn’t have the cash any problem assistance state accessing and federal mandates we under.” testified to her operate Harper efforts to third with the bills. get parties Even help prior any
527 order, with she knew that policy regard payment court cash from DHS. other than to find alternate resources bills was the trial court 11 concluded with issuing This December had not who a attachment for Doherty, appeared. body mat- trial took the contempt 16 the court up December On that sent her on e-mail testified an Cooper ter. regarding Doherty her sent another R.P.’s case. Cooper 26 concerning September her that “Court today 30. told e-mail on Cooper September bill and electric and Baker us to water and ordered pay Judge bill caused the water the leak had plumber repair had some law Brian “brought up Because Rogers outrageous.” bill, Baker amended about state ordering agency Judge ‘Provide housing.’” order to say adequate do, what she should Doherty responded When asked by Cooper and contact should with community providers she proceed an to file believed that she an Doherty complied attorney appeal. order, did not mean for DHS to with the and that judge check, to did not tell of her “write a do cash assistance.” She any the trial denied DHS’s staff to the order. When disobey 21, she the bills motion to set aside on November ordered paid. December 16 the trial court entered Following hearing, DHS, Sandi finding Doherty, through willfully order. court further violated its intentionally September found that acted with willfully Doherty intentionally direct the court’s order. disobeying purpose September in was found to be for consti- fifty-three days, Doherty contempt acts of was ordered to She fifty-three contempt. tuting separate serve each one act of day county prison contempt.
DHS filed a notice of from the order its appeal denying order, motion to set aside the as well as from the order. also filed a belated notice of Doherty contempt appeal from the order with from this court. permission brief, did not file a the State intervened and has Although appellee filed a brief response. *11 30,
I. DHS’s the 1996 order. appeal September from A. and timelinessissues. Standing DHS, below, Intervener that as a suggests lacks non-party the from to standing requisite appeal September without or intervened below initiated an having action in original the trial court. intervenor that DHS’s notice Alternatively, argues of from 30 order was under the appeal September untimely timeliness of Ark. Civ. P. 59 R. and 60 Ark. R. provisions 4. We P. — Civ. these App. reject hold DHS arguments to and that its notice possesses requisite of standing appeal, filed. timely appeal
The matter is resolved Arkansas
Human Servs. v.
by
Dep’t of
Crunkleton,
21,
303 Ark.
Crunkleton was followed by where this court Bailey, once held that DHS was again from a direct precluded bringing from an order appeal it in a requiring treatment FINS case that it had initiated and was not a to. party Although that the case was argued from Crunkletonin distinguishable that it had a aside, filed Rule 60 motion to set we noted that “DHS has not denial its motion set appealed aside the which would have been the judgment proper procedure.” Bailey, supra. case, DHS has followed “proper pro
In the present relief first sought It court by Bailey. cedure” prescribed aside motion set following the trial court by filing from that this motion While intervenor suggests 30 order. the timeliness provisions been otherwise governed should have never that DHS was “party” the fact remains Rule 59 and rules. Pursuant of those action for to the purposes underlying the trial until from it no final appeal had judgment Bailey, *12 cir Under the motion to set aside. its entered an order denying case, has that DHS standing we conclude cumstances of from the trial court’s filed notice of has a timely appeal 30 order. to set аside the its motion September denying B. Statutory authority. trial 30 order contends that the court’s
DHS first September It its code. cites us to “V- did juvenile policy comply C,” which 1993)1, and Ark. Code Ann. 9-27-303(17) (Repl. § in which services” a list of instances “family may provides provided: services, but not including, services” means relevant lim- “Family care; services; child crisis cash counseling; ited to: homemaker assistance; or family transportation; therapy; physical, psychiatric, treatment, evaluation; or to a counseling; provided
psychological juvenile or his services are order to: family. Family provided Prevent a from from a (A) juvenile being parent, removed guard- custodian; ian, or with the or (B) juvenile Reunite custodian parent, guardian, removed; been juvenile from whom has or or (C) permanent Implement plan adoption, guardianship, of the rehabilitation juvenile.
DHS contends that none of the three criteria for services fаmily were case. met in this 1 In the General amended the We Code. Assembly substantially Juvenile citations to the statutes in effect at the time the case was decided below.
provide
To the at the contrary, the trial September hearing, stated that it was unequivocally services to ordering prevent R.P. from “Well, removed from her mother. being I think I’m to order the going Department the water having turned back on. The electricity alternative is to take only R.P. into of the custody This conclusion Department.” was supported evidence of the detrimental effect of R.P.’s conditions. living The evidence to that established that the P. point still had family no water or at the house. electricity DHS did not the trial dispute court’s that R.P. was a finding member of a in need of family services, and stated at the Cooper September that DHS would R.P. in a “certainly” foster home put “if trial [the court] at her in a foster home.” put want[ed] one prosecutоr that R.P. was point suggested not able to bathe and herself present sum, for school. In appropriately the trial court’s order did not exceed the criteria for Ark. statutory services as set forth Code Ann. 9-27-303(17) 1993). (Repl. §
An facet of DHS’s implicit seems argument to be that 30 order was defective because the trial court failed *13 to make written in accordance findings with Ark. Code Ann. 9- § 27-328(a) 1993), which (Repl. that the court requires order family services removal appropriate before prevent removing juve nile from the of her It custody is clear parent. that the statute requires specific when findings the court only orders actual removal from a Thus, custodial we decline parent. to hold that the trial court’s order was defective under Ark. Code Ann. 9-27- § 328 1993). (Repl.
With
to DHS’s
regard
contention that the trial
court’s order did not
with its
comport
this court
policy,
has previ
held that the
ously
court’s
juvenile
orders do not have to сomply
with DHS
See Arkansas
policy.
Clark,
Human Servs.
Dep’t
v.
of
403,
304 Ark.
C. 30 order. Constitutionality
1. Sovereignimmunity.
When DHS first moved to set
aside
trial court’s Septem-
order,
ber 30
it
that it was entitled to assert
argued
sovereign
and could not be made
immunity
a defendant without waiving
On
sovereign immunity.
that the trial court’s
appeal,
argues
burden,
order coerced DHS into
a financial
which is
bearing
barred
the doctrine of
While intervenor
sovereign immunity.
below,
that this
suggests
was not made
our
argument
review of the
record shows that the issue was
Addition-
sufficiently developed.
find,
we decline to
as
ally,
intervenor
suggests,
sovereign
been
immunity has
waived
because
filed
simply
prosecutor
FINS
here. DHS was
petition
never
initial
moving party
these
State,
SeeArkansas
proceedings.
Human Servs.v.
Dep’t of
481,
Ark.
However, we nonetheless find that there is a waiver of
sovereign
under the
immunity
circumstances
This
presented.
court has
recognized
the doctrine of
exception
sovereign
where an act
immunity
of the
has created
legislature
a specific
waiver of
See State
immunity.
Arkansas
Child Support
Officeof
Mitchell,
v.
330 Ark.
954 S.W.2d
(1997);
Enforcement
Tedder,
v.
State
juvenile a removed from parent, guard- from being Prevent a (A) juvenile custodian; ian, or or custodian the parent, guardian, with (B) juvenile Reunite removed; been or has
from whom juvenile or guardianship, of plan adoption, a (C) permanent Implement juvenile. of the rehabilitation 1993) added). 9-27-303(17) (emphasis
Ark. Code Ann. (Repl. § adult. Ark. Code Ann. be initiated A may by any FINS pеtition a Before 1993). juvenile may 9-27-310(b)(3)(A) (Repl. § serv- is to order from a the court required family removed parent, Ann. 9-27- removal. Ark. Code to prevent ices appropriate § 1993). 328(a) (Repl. to order that the trial court is family
Given empowered removed from being services in FINS cases juvenile prevent assistance, we definition includes cash from a which by parent, waived sover the General Assembly’has specifically conclude that such instances. other Any as to DHS in interpreta eign immunity to order eviscerate the court’s power tion would effectively true This is considering services in FINS cases. especially adult,” DHS will not initiated where FINS case bemay “any could have Such a be the initial moving consequence party. the General Assembly enacting been intended by Juvenile Code.
2. Separation powers. of 30 order violated
DHS also argues September but decline reach merits given we separation powers, or below was not raised theory sufficiently developed order. See Stricklin v. aside the respect setting on 103 (1998) Ark. 965 S.W.2d (supp. opinion Hays, that its concedes 1998). denial Ark. op. May slip reh’g, the doctrine of “did not discuss motion to set aside separation *15 name or at but asserts its of powers by any length,” separation issue is in its motion and powers preserved by language amended motion set aside that “both State and its agencies not be funds not may compelled expend appropriated However, General of the State of Assembly Arkansas.” our review of the record shows that DHS’s of on separation powers argument was not to the trial court. Based on the appeal presented forego- the trial court did not abuse its ing, discretion in DHS’s denying motion set aside the 30 order. September II. DHS’s order. appeal contempt from
A. Due Process.
DHS first that the trial argues court erred in it in holding because its orders did contempt not conform with cоnstitutional of due requirements DHS process. makes two essentially separate the first is that arguments, 30 order was indefinite DHS, as to the obligations imposed upon second that the trial court’s show-cause orders were insufficient it notice. give
DHS
Gatlin,
relies on Gatlin v.
primarily
306 Ark.
146,
imposed rather than implied. that the 30 September DHS’s argument
We reject it. upon as to the obligations imposed was somehow vague order Services is to of Human provide that “Dept, The order provided — and elec water the including for family] housing adequate [P. that the that DHS knew purpose shows The evidence tricity.” home. At to the P. family it to restore utilities the was for order Reynolds stated “Judge 30 the hearing, Cooper September And, I no to them. have way to their bills for us pay expected it, about on area manager I’ve talked with my that. accomplish — occasions, the we don’t have and thеre’s just different two So, later what we can.” to we’ve done Cooper do that. budget that it her understanding 11 was testified at the December hearing bill and the electric DHS to that the court ordered pay past-due via to Doherty This was communicated the water bill. past-due to e-mail, to contact an attorney with instructions who responded She also had a conversation the bills. file an and to appeal, the order she that she where explained thought with Doherty water turned on. the electricity meant that DHS was get not mention cash assist 30 does Although a reason ance, the utilities within knew that it was restore DHS of time. able amount that its notice of meritless DHS’s claim
We also find
deficient.2 Arkansas
constitutionally
was
show-cause
court’s
1994),
16-10-108 (Repl.
governing
Code Annotated §
“the
criminal
contempt, provides
part
punish
power
and shall have
of the accusation
shall be notified
charged
party
sеrvice of
argument with the notion that the
its constitutional
DHS intersperses
show-cause
should have
to the
of the Rules of Civil Procedure
applied
process provisions
were for criminal
proceedings
case
There can be no doubt that
order.
present
proceeding is to
of a criminal
preserve
power
contempt
contempt.
purpose
v.
Fitzhugh
dignity
for disobedience of its order.
of the court and
vindicate
punish
(1988).
proceedings
civil
State, 296
While DHS makes much of fact that it received *17 no written of notice the first scheduled show-cause on 21, November the fact remains that it was served on December 6 with the show-cause order it to December directing appear 11 This order “That on the hearing. 30th of provided day Sep tember, 1996, and its were ordered this court to agents by [DHS] cash assistance for and water for in pay R.P. the home electricity in which she is or to other living That provide adequate housing. to date has failed and refused to said amounts.” [DHS] circumstances, Under these we hold that DHS recеived notice with due and the of comporting Ark. Code process requirements Ann. 16-10-108. §
B. the evidence. Sufficiencyof
Here DHS that the trial court erred argues in finding that its actions were willful and constituted a contempt beyond reasonable doubt. This is in a to the suf point actuality challenge of the evidence ficiency on In a contempt criminal finding. of contempt proceeding, must exist proof reasonable contempt beyond doubt. Jo v. lly 719 S.W.2d Jolly, (1986). 430 review, On we consider the appellate evidence in the most light favorable to the trial court’s decision concerning and affirm if there is substantial evidence to its decision. support Clark, Arkansas Human Servs. v. Dep’t Ark. S.W.2d 331 (1991) (“Clark II’).
Clark II is illustrative on at point. contempt finding issue there involved DHS’s failure to with an order of the comply trial court to a to and to provide transportation provide remainder of available funds. With preventative regard been a issue, that there had the evidenсe showed transportation tokens without justification. bus delay obtaining two-month disbursements, that DHS the evidence showed With respect ordered, but were certain cash disbursements was aware that with was not in of the money compliance that payment explained to a in an audit and could result leading penalty agency policy it that thought DHS explained funds reduction. additionally that the case was on appeal its staff was under impression The trial court found order had been obtained. assumed stay it not act did DHS’s argument DHS in contempt, rejecting that “there are various The trial court stated degrees “willfully.” willful, I think in are various being of willful as there types time, have and we some lags this big, you’re going agency is, I think the agency that. I’m concerned understand What with the Court’s did not do much to deliberately very comply just Id. until much the eleventh hour.” pretty affirmed, the trial court’s II The Clark observing of the offered statement was not аn characterization proof “inapt inaction, it not have been its and while may explain rancor, Id. There was neither was it inadvertent.” motivated by that DHS the trial court’s substantial evidence finding support *18 was not “It was the order was in willful contempt. undisputed no with the with and we find basis for disagreement complied act constituted conclusion of the trial court that DHS’s failure to Id. willful contempt.” case, is the the of DHS’s
In substance argument present the there willful with trial court’s order was no noncompliance it it at and that never because made attempts compliance, ongoing to In it intended court order. highlights disobey particular to the P. from commu- efforts obtain for family support Harper’s until the these “alternative methods” made Given nity providers. heard, to set aside was it reasons that “their efforts could motion disobedience.” never be defined as willful above, DHS understood We As discussed already disagree. it to restore the utilities. None- the trial court’s order require theless, the bills. informed not Doherty specifically Cooper pay took the that its fact that DHS immediately very position own funds could not be used to the bills substantiates the pay it notion that it knew was the bills with its own funds if it pay could otherwise restore the utilities. While the evidence showed that made to obtain funds efforts commu- Harper through fact remains the bills were not until nity providers, paid of the end November.
While DHS not have been motivated ran “may by cor,” neither was its failure bills “inadvertent.” Cf. II, Clark evidence in most supra. Considering light favorable to the trial court’s decision concerning contempt, the trial court had substantial evidence before it with which to conclude that DHS was in willful of its order. contempt
C. Separation powers. of
DHS also
that the trial court
erred
argues
finding
DHS in
due to the
of
doctrine
contempt
Its
separation
powers.
contention is that the trial court
the еxecutive branch’s
usurped
resources
power
allocating
services
disbursing
which were
branch. We
appropriated by
legislative
agree
intervenor that we are
from
the merits of
precluded
this
reaching
itas
is in
substance
attack on the
point
order. In
underlying
Burnett,
Carle v.
D. Bias. Judicial that the
Finally, argues order should have been set aside due to instances of bias on the of the trial court. part *19 In its brief it writes that the trial “should have recused her- judge self from the on December 11 and 16, 1996, contempt hearings as requested motion to amend brief and judgment.” [DHS’s] While a to number of points actions trial court which DHS contends reflect bias and judicial should have resulted 538 recusal, with the instance actually we deal trial court’s only
in the
State,
v.
314
See Franklin
court’s attention.
the trial
brought
of
not be raised
329,
bias
(issue
may
(1993)
Judges
of bias.
and must avoid all
be interested
appearance
they might
565,
State,
decide
(1994).
To
v.
318 Ark.
886 S.W.2d
Reel
discretion,
the record to
we review
whether there was an abuse of
or
exhibited. Id. The ques
determine if
bias was
any prejudice
of the
to the conscience
judge.
tion of bias is
confined
usually
Noland,
While are due at the first this issue failure timely object preserve as the we nonetheless affirm on the merits alleged opportunity, the trial court’s recusal. instance of bias is not warrant enough on the and frustration While it evinces displeasure part certainly court, trial court erred in the trial we cannot say denying on bias. DHS’s motion to amend grounds judicial judgment *20 III. Sandi order. Doherty’s contempt appealfrom
A. the trial court. Jurisdictionof DHS,
As with
also
that the trial court
argues
Doherty
erred in
her in
in that the
30 order
finding
cоntempt
was indefinite
toas
her
any obligations imposed
individually,
upon
and that she never received sufficient notice of the show-cause
While it is true that
is not named in the
hearing.
Doherty
Sep
order,
tember 30
we have no hesitation in
that the order
holding
inwas
definite terms as to the duties
imposed
Doherty,
upon
the command was
rather than
v. Eber
See
express
implied.
Henry
hard,
Gruber,
Doherty should be argues contempt finding reversed because she did not receive notice show- adequate cause She chooses to hearing. the fact that primarily emphasize shе was not served with show-cause personally order for the on December 11. An affidavit from an officer White Sheriff s office that County shows he served a on subpoena her, Doherty “by telephone,” and told explained subpoena her the court date. reasons she was never Doherty personally served, and thus the trial court never obtained jurisdic- personal tion over her. we reiterate that this was a
Again, criminal contempt to which the proceeding service of the rules of civil provisions do not We also procedure intimation that apply. reject Doherty’s this situation is the rule service a crimi governed by governing summons, Instead, nal Ark. R. Crim. P. 6.3. the governing provi 16-10-108, sion is Ark. Code Ann. which forth sets the court’s § power punish criminal provides part “the shall be notified of party the accusation and charged shall Moreover, have a reasonable time to make his defense.” the Due Process Clаuse requires contemnor notice alleged given *21 and be informed him against of the charge contempt pending State, v. See supra. nature of the charge. Fitzhugh of the specific case, we hold that of this facts Under the particular otherwise comported the accusation had notice of Doherty and due process of section 16-10-108 the with requirements order for the first show-cause served law. She was personally this order did 21. on November Although the hearing violated, Doherty that was offense or describe the matter was discussed. where at that contempt present of the of the date informed she was by telephone Additionally, facts, Given these Doherty December 11 show-cause hearing. time to and a reasonable offense had actual notice obviously her defense. prepare
B. bias. Judicial (she as DHS asserts a similar argument appar
Doherty filed below) amend in DHS’s motion to judgment ently joined necessitates that of the trial court that bias on and alleges part reasons as For the same expressed order be set aside. contempt above, the trial court here. we affirm sentence. IV. contempt have take note of sentence. We Doherty’s we
Finally, in lies that the contempt principal justification recognized of the law confidence in majesty need for public upholding and “when we have of the system and in the integrity judicial or even a remis a reduction found these ends will be met despite it has been our sentence for practice sion of a jail 477, Burnett, Ark. 845 v. 311 Carle modify judgment.” Amsler, v. 238 Ark. Garner Rosen S.W.2d 7 (1993) (quoting State, v. see also 266 Ark. 872 (1964)); 377 S.W.2d Page 216, 515 v. 70 Dennison (1979); Mobley, 583 S.W.2d case, of this in circumstances (1974). Given S.W.2d limited for DHS was as area authority manager which Doherty’s DHS, at set senior officials of DHS policy implementation the December 4 show-cause of whom were sеrved with some we are con- at the December order but did not hearing, appear vinced that the ends of do not that Doherty justice require confined to for the of time the trial court. jail length imposed by we remit the sentence to two to reflect jail days Accordingly, shared in the matter. Doherty’s culpability Affirmed as modified.
Glaze, J., concurring. Arnold, C.J., JJ., concurring Thornton, Brown part; dissenting part. I Glaze, with the Justice, agree concurring. majority
Tom but write to mention it what further but does opinion, suggests, *22 First, not it must be that the trial say. court in this emphasized matter had litde other choice than its to exercise of con- power when refused to with the court’s tempt person willfully comply Here, order the to directing with law. person comply DHS, anas area Doherty, countermanded the trial manager court’s order case worker Heather by telling not to Harper pay utilities even DHS had family’s though sufficient funds to pay utilities.1 Whilе the trial court was within its to use its power criminal to authority for her contempt disobedi- punish Doherty order, ence of the court’s I it think would have been more appro- in these circumstances
priate to have compelled Doherty’s DHS’s the trial court’s civil compliance through contempt power — which me to the real brings of this concurrence.2 point
While was a to Doherty certainly the willful disobedi- party order, ence of the Director, trial court’s the then-DHS Tom Dal- ton, and three other officialshad been ordered to show cause why should not be found in they as well. None of these contempt 1 The following case worker and were in Doherty apparently department policy declining budgeted to use cash assistance funds to utilities. The case pay family’s though, worker, tried to obtain monies from other but sources, failed. independent 2 Civil would have availed to with Doherty opportunity comply court’s or if she evidence, could not with court present any, directives, why comply e.g., whether she was ordered to cash assistance. The dissent by supervisors suggests acting agency under fixed incorrectly which she had no Doherty policy If true, this were authority should have init her defense. supersede. Doherty presented She did not, and is in no to surmise on or whether not she was position to follow a DHS that contravened the trial compelled court’s order. policy Unfortu- served. were they personally although officialsappeared, officials’ these appear- the trial court’s failure compel nately, by subordinates, ance, that only the mixed signal the trial court sent officials, are answerable department and not high-ranking who were served view, officials In the three DHS ranking my made to have been appear a show-cause order should with that contravenеd court’s adhered to why they policy explain to have shared in DHS’s Because these officials directives. appear order, isit fair that only abide the trial court’s willful refusal to of the with the entire brunt not be saddled punishment. Doherty Therefore, substantial remittance of I with the majority’s agree rendered in this case. sentence in part; dissenting L. Justice, concurring Brown, Robert for the con- I with majority opinion except agree part. a mid-level affirms sanction The majority sending imposed.
tempt with which conflicted bureaucrat for following policy jail I cannot Sandi Doherty the trial court’s order. agree putting reason, I dissent. For that under these circumstances. jail time, research, that this court This is the first according my fixed who was under agency has employee acting jailed agency And while I no which she had authority supersede. policy cannot be flouted and must be that court orders heartily agrеe *23 sanctions, whether the trial I seriously subject question obeyed Indeed, the and this court are right punishing person. made the Ms. has been whole affair Doherty suggests scapegoat. the DHS limited cash assistance department policy paid — children who were “at risk.”
cases of child abuse or neglect neither Ms. R.P.’s situation fell into Initially, category. Doherty on she was did not but placed adopt policy, unquestionably or the of Either followed the horns a dilemma. she agency policy for the and court’s directive to water electricity. trial “provide” was with court’s testified that she believed she complying She aid from charitable community providers order by garnering this to be in direct needs. The trial court meet R.P.’s perceived order, with 53 of the and she sanctioned violation original to serve in jail. days outcome to the
My only grievance
goes
severity
the sanction under these
In
facts. Arkansas
Human Sеrvs.
Dept. of
Clark,
v.
Here, it that we are a lieutenant appears for a jading general’s doubt, offense. The no has simdar majority, and that is qualms, time for Ms. why jad has been remitted from Doherty 53 days to 2 Even 2with days. days humiliation of stigma being attaches. I jaded think this new toward get-tough policy functionaries could have been enforced as wed just by assessing or, indeed, fine her meaningful against DHS itself. against reasons, For these I dissent from that of the part majority opinion Ms. sentencing Doherty jad.
Arnold, C.J., Thornton, J., join.