ARKANSAS DEPARTMENT OF HUMAN SERVICES v. Jose Lorenzo LOPEZ
90-19
Supreme Court of Arkansas
April 23, 1990
787 S.W.2d 686
Affirmed.
PRICE, J., not participating.
S. Whittington Brown, Deputy Counsel, Office of Chief Counsel, Department of Human Services, for appellant.
Keith Watkins, for appellee.
TOM GLAZE, Justice. This is an appeal from the probate
Because of the above facts, we must conclude that the probate court‘s order is not a decree from which an appeal may be taken under
(a) An appeal may be taken from a circuit, chancery, or probate court to the Arkansas Supreme Court from:
1. A final judgment or decree entered by the trial court.
2. An order which in effect determines the action and prevents a judgment from which an appeal might be taken, or discontinues the action;
We have repeatedly held that we will not decide the merits of an appeal when the order appealed from is not a final order. See, e.g., Tapp v. Fowler, 288 Ark. 70, 702 S.W.2d 17 (1986). In 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. See, e.g., Sevenprop Assocs. v. Harrison, 295 Ark. 35, 746 S.W.2d 51 (1988). In addition, whether a final judgment, decree, or order
Clearly, here the probate court‘s May 23, 1989 judgment ordering a paternity hearing on June 28, 1989 is not final. As the probate judge admitted, this hearing could resolve the whole case. Because this matter is still pending before the probate court, we must dismiss the appeal.
HAYS, J., dissents.
STEELE HAYS, Justice, dissenting. For Cordell Luis Lopez, aged four, life has offered little more than reverses. He has been renounced by his mother, had only minimal contact with the man who claims to be his father, is separated from his older brother, and lived in two foster homes. Yet now, under the order appealed from, he faces removal from an adoptive home, presumably the first potentially stable family environment he has known, so that a putative father who eschewed earlier opportunities, and who has contributed nothing whatever to his support, can belatedly assert parental rights, for no greater reason than because ARAP Rule 2 does not now provide for interlocutory appeal of disputes involving children. But we have twice amended the rule on an ad hoc basis to affect pending litigation on less compelling grounds than the welfare of a child. I refer to Ford Motor Credit Corp. v. Nesheim, 285 Ark. 253, 686 S.W.2d 777 (1985), where we changed the rule to permit interlocutory appeal from a class action certification, and Herron v. Jones, 276 Ark. 493, 637 S.W.2d 569 (1982), where we held that an order disqualifying an attorney from further participation in a case is appealable. I suggest the placement of children ranks at least on a par with commercial and professional disputes as warranting interlocutory review.
Since it will be many months before a final order is entered and an appeal concluded, it seems evident that this child has become a victim of society and of the legal system as well. I would allow the appeal and address the merits.