*1 68 69, As
State,
Here,
into exe
sentence
original
put
appellant’s
sentence and
trial
revoked his
cution when the
court
probationary
Act 1569
8 of 1999
in
sentenced him to one
jail. Although
year
§
here
McGhee, the act is not
overruled
implicated
legislatively
time
committed the
because it was not in effect at the
appellant
v.
he was
on
See
offense for which
Bagwell
original
put
probation.
we
State, 346 Ark.
Division III delivered Opinion June *3 Rees, for Mark appellants. McClain, for
Dana appellee. arry and D. Vaught, Judge. Christopher Jennifer J the trial court’s order terminating Battishill from appeal their three children. argue their as to Appellants rights parental their had waived that the trial erred in they judge finding counsel; that their should be to in rights finding child; to and in their as terminated as to each terminating rights him their child without adjudicating dependent- youngest and therefore do not reverse on the first issue We neglected. on address the issues remaining appeal. held, 9, 2000, and the termination was
On hearing April each se. Appellants’ parental proceeded pro appellants three children were terminated based on finding each of their of the trial court that a return of the children to the home family health, to their and welfare. contrary safety,
The United States Court has found that there Supreme is not an absolute due to counsel in all process right parental-ter mination Servs., SeeLassiterv. Soc. 452 U.S. proceedings. Dep’t of The Court that due has never acknowledged process been, be, defined, and never can and concluded perhaps precisely the due clause is an “applying therefore uncertain process which must discover what ‘fundamental enterprise fairness’ con sists of in a situation first relevant particular by considering any and then the several precedents interests that are at by assessing stake.” Id. at 24. Lassiter,
In the Court left the decision as to specifically “whether due calls for the counsel for appointment in termination indigent parents to be answered in the proceedings court, first instance the trial of course to subject appellate review.” Id. at 31. The Court then went on to note that “it is neither nor possible to formulate a prudent attempt precise detañed set of to be followed in guidelines when the determining of counsel is providing to meet the necessary due applicable pro- cess as facts are requirements of almost infinite vari- susceptible However, Lassiter, ations.” Id. at 32. the Court noted two relevant factors in its threshold determination that “fundamental fairness” did not a due require counsel the case process right 1) *4 no law, presented troublesome specially of and 2) points presence of counsel could not have made a determinative difference for the Court petitioner.1 Finally, recognized the Four- although teenth Amendment on the states the imposes standards necessary to ensure fair, that the is judicial a process wise fundamentally be for a state public policy may standards than require higher those tolerable under the minimally Constitution. Id. The Court a offered final note that states and the District of thirty-three Columbia for the provide of statutorüy counsel in appointment cases; however, termination noted that these stan- they heightened 1 Judge As Baker’s concurrence the out, case at bar does troublesome points present law, of and the of counsel could have made a determinative points difference in presence the outcome the case. of
72 but are “enlight- merely
dards are constitutionally required, not Id. at 34. ened and wise.”
Therefore,
initial
the
our
based on
Lassiterprecedent,
in a termination-of-
to counsel
in an indigent’s right
inquiry
fair
not “fundamental
must be whether or
case
parental-rights
in Lassiter
counsel. The dissent
the
of
ness” requires
appointment
of
“fundamental fairness”
contends that
requires appointment
and a
a
where a
between parent
counsel in
case
relationship
every
that the
It is our
is
severed.
opinion
child
being permanently
the same conclusion by
has come to
Arkansas General Assembly
9-27-316(h)
Annotated section
(Supp.
Arkansas Code
passing
of counsel in all
which
for the
paren
2000),
appointment
provides
the
of the
after
parent
tal-termination
upon
request
proceedings
court,
funda
the
thus
advised of the
preempting
being
right by
the trial court
to the due
mental fairness determination
prior
right attaching.
has found that a
our
court
Accordingly,
supreme
of counsel is valid
waiver
the fundamental
to the assistance
of
right
to waive the
of counsel is
when
the
1)
right
unequiv
only
asserted;
and intelli
there has been a
2)
ocal
timely
knowing
counsel;
the defendant has not
waiver of the
and 3)
right
gent
the fair and
in conduct that would
orderly expo
engaged
prevent
Servs.,
v. Arkansas
Human
344
sition of
issues. Bearden
Dep’t of
waive
Ark.
42
397
In order to
effectively
S.W.3d
and disad
counsel the
must be “made aware of
dangers
parent
that the record will establish that
so
vantages
self-representation,
made
with
he
what he is
and that he has
his choice
knows
doing
403, 406,
State,
Ark.
989
his
Bledsoev.
337
S.W.2d
eyes open.”
(1975)).
Faretta v.
Interestingly, supreme to counsel in her termination mother’s proceeding, statutory right whether the the trial court failed to determine out pointed case, also attached to her due to counsel particular process right declined to make its own determination and regarding specifically However, the her due to counsel right during proceeding. reversed this court and affirmed the trial court’s the court supreme had the the trial court ruling determining accepted if counsel, it would have erred mother’s waiver of her did standards the because her not constitutional satisfy for added.) waiver counsel. (Emphasis bar, In the at we must determine if the waiv- case appellants’ ers were both and intelligently unequivocal knowingly Here, offered. Mrs. Battishill informed the court that she did not feel that her had the her “to best of his abil- attorney represented and then she told court that she felt that she could ity,” herself. The trial court then about represent began inquire Battishill, decisions to se. As to Mrs. appellants’ proceed pro court made the following inquiry: Battishill, . . . Miss do no want Mister
Court: you longer Williams to in these you represent proceedings? No, Ms. Battishill: I don’t. And is that? why
Court: Ms. Battishill: I don’t feel he me best of his represented
ability. I need more than that. Court: something Ms. I feel I Battishill: can better. represent myself understand that Court: you Do Department Human Services has now filed a petition seeking to terminate your rights?
Ms. Battishill: Yes. *6 You want to this Okay. represent yourself
Court: matter?
Ms. Battishill: Yes sir.
Court: So want to Mister Williams as you discharge your
lawyer?
Ms. Battishill: Yes sir.
Court: And represent yourself?
Ms. Battishill: Yes sir.
Court: Do understand how serious this matter is? you Ms. Battishill: Yes sir.
* * * ... I think I heard Court: some comment to the you
effect that wanted another besides you attorney Mister Williams?
Ms. Battishill: Yes sir.
Court: Which it? is Ms. Battishill: I would like different attorney.
* * * Court: Do feel like there’s such a conflict between you and Mister can’t
you Williams continue you with him being your attorney?
Ms. Battishill: Yes sir.
* * * Battishill, Court: All Miss I’m right, to going grant your that Mister Williams be relieved as your I’ll another attorney. to appoint attorney Battishill, I’m you. Miss to represent going Grant DeProw ... fur- appoint you represent ther in It these without proceedings. goes saying since I’m that we’ll do have to continue going this until another date. . . hearing Ms. I sir. Can ahead and Okay, go representmyself Battishill:
then ‘causewe’d like ahead this go get over with today.
Court: You want to ahead and go proceed today? Ms. Battishill: Yessir. Without being representedby lawyer?
Court: Ms. Battishill: Yessir. the termination the trial
During court also hearing inquired about Mr. Battishill’s desire to se. In to the proceed pro response trial court’s Mr. Battishill inquiry, DHS was acknowledged to terminate his and that he attempting wanted to parental rights himself. when represent DHS called its first Additionally, witness and Mr. Battishill the trial court objected, admonished him and told him the first (for that he would be time) held to the same standards as licensed counsel.
Based on the first foregoing exchange, appellants argue Mrs. Battishill was in her desire to waive her equivocal right counsel. much on the Appellants place fact that she was emphasis warned of the serious nature of the was then offered proceedings, counsel, substitute which she but initially accepted, ultimately declined.
We are satisfied that because Mrs. Battishill was asked if counsel, she wanted to without with her proceed affirma coupled tive she was in response, her waiver. unequivocal Additionally, she was the to meet with a given different opportunity but lawyer, declined when she learned that the to continue the judge planned termination until a with her hearing new counsel could meeting be she, Battishill, we believe that arranged. like Mr. Accordingly, in her desire to waive her unequivocal to counsel.2
We now consider the appellants’ arguments relating the second of the constitutional prong standards for waiver of counsel. In order to waiver, establish a voluntary intelligent
2 Appellants unequivocal. concede that Mr. Battishill’swaiver was of assistance
the trial
must
desirability
having
judge
explain
the trial and the drawbacks of not
an
of an attorney during
having
State,
v.
336 Ark.
Reversed.
Griffen, J., agrees.
Baker, concurs. J., Baker, R. I that Judge, concurring. agree appellants’ fundamental
Karen of due were rights denied; however, I write to address additional issues as separately occur on remand. they may
First, it is not of the likely although preservation argu- ment will be an issue on remand because will have appellants counsel, child, B.B., it should be noted that the youngest Second, never the evidence adjudicated dependent-neglected. does not termination of as to presented support parental rights C.B., and B.B. The which termination of Jr., allegations upon were involved a in motor skills and rights merely delay predicated conditions. painful dental-hygiene
Furthermore, evidence although supports finding care, A.B. ais needs child more than special requiring ordinary fact that the not be able to for the needs a may parents provide child care does not mean that requiring extraordinary necessarily issue, cannot raise their other two children. To they address that a determination of the limitations and 9- Section interpretation 27-341 (ix)(a)(4) Arkansas Code Annotated 2002) (Repl. may be The section sets forth as one for the termi- required. ground nation of that a is found court of com- “parent ... to have had jurisdiction his petent parental rights involuntarily terminated to a as of the child.” The subsection is included sibling offenses to warrant among significant termination of enough murder, for committed parental rights parents having voluntary and other manslaughter, felony battery, acts. aggravated Similarly, section (33)(6) 9-27-303 relieves DHS from its obligation pro- vide reasonable efforts towards reunification where parental rights have been terminated as to a child’s involuntarily Both of sibling. these references to were added to Act siblings pursuant, *9 4, on approved by March 1999. general assembly session, this same the definition of During dependent- was amended twice neglected of Act following 401. approval First, 1503, 4, Act 1999, on added the approved April reference to “a in the definition of a sibling” dependent-neglected juvenile. See Ark. Code Ann. 9-27-303 This same defini- 2002). (Repl. § 16, tion was then further 1999, amended and on approved April where the deletion, reference to a was deleted. this sibling Despite the term was included in the sibling codification of the amendments.
78 are enacted that when identical acts
Section 1-2-207 provides
session,
the same
that the act
during
General
Assembly
have
the earlier enactment.
last shall be deemed to
signed
repealed
However,
act
same subject
when more than one
concerning
session, whether or not
the same
matter is enacted during
specially
uncodi-
the Arkansas Code or an
the same sections of
amending
act,
effect
to the
all
the enactments shall be
fied
of
given
except
in which case the
extent of irreconcilable conflicts
conflicting pro-
The
construc-
the last enactment shall
statutory
vision of
prevail.
to address the issue
of these sections will be
tion
necessary
the two brothers in this case.
neglect regarding
dependency
This
even
critical because
construction issue is
more
statutory
the termination of
When the
this case involves
rights.
parental
there is a
issue is one
the termination of
rights,
involving
parental
the rela-
burden
to terminate
seeking
heavy
placed upon
party
Servs.,
Ark.
12
v.
Human
Ullom Dep’t
tionship.
is an extreme
S.W.3d 204
Termination
rights
the natural
of the
Id.
remedy
derogation
parents.
Therefore,
with our statutes is
our adherence to strict compliance
Arkansas
Human
not
a standard of review. See
merely
Dep’t of
Cox,
v.
Ark.