*1 issue, of our resolution of the need we light suppression not address the reli- argument appellants’ remaining concerning of the confidential informants. ability
Reversed remanded. JJ., agree. Griffen, Gladwin
Rohnda KIGHT v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES
CA 05-522
Court of Arkansas of Appeals 8, 2006 delivered March Opinion denied [Rehearing August 30, 2006.*] C.J., HartJJ., grant rehearing. concurs. Bird would * PITTMAN, *2 Glen for Hoggard, appellant. Turner, Allen
Gray appellee. Kendrick, Litem, Hill Ad for minor children. Attorney Jennifer
Andree LaytonRoaf, Rolinda Judge. Appellant from the Faulkner order Circuit Court’s appeals County children, her her two and minor A.W. terminating L.M. This is the second time this case has been before this court. In Servs., v. Ark. Human 87 Ark. 189 S.W.3d Dep’t (2004) court reversed remanded this case I), (Kight directed that reunification services be Arkansas continued. Appellee of Human Services filed another (ADHS) petition terminate which-the trial court For Kight’s parental rights, granted. reversаl, that the trial court erred in Kight argues terminating not mandate of this court from the rights (1)by following We affirm. (2)
prior appeal by violating due-process rights. order, After reversal of the ADHS prior sought and also review court. rehearing ADHS sought supreme that the learned court had denied review on supreme September 2004. At a review on November the trial into the status of the case. ADHS informed the inquired court that the order affected this court’s reversal was the only order that terminated and that all other Right’s parental rights effect, orders remained in the order for no reunification including services. At this also announced its intention to file a second to terminate and it did so Right’s parental rights, *3 the same The trial court stated that it would have a on day. hearing 18, 2005, to determine whether there should bе January reunifi- cation services offered in this case. This was hearing subsequently 3, continued until 2005. The February February hearing was thus for the whether to terminate purpose deciding Right’s At this to the parental rights. hearing, Right objected that reunification services had not been offered to petition, arguing her in with this court’s mandate. compliance Wallace, assistant,
Linda a social worker testified at the that the first she had hearing with since this case meeting had Right McDonald’s, been was at re-opened Right’s place employment at the time. Wallace drove home to take a test that Right drug came tests, back refused several negative. Right subsequently drug Wallace that her had telling told to refuse attorney any drug tests administered because ADHS of their Wallace unreliability. dealer, saw a convicted Raymond at home Morgan, drug Right’s hours, on two occasions in the Wallace early morning although never saw evidence Wallace, that he was any with living Right. occasion, at least one went home at 4:50 a.m. to Right’s Wallace, administer a test. that was a drug According good way to “catch some at home. Wallace found out from a people” that had and neighbor was Right changed jobs working Burger Wallace testified that sometimes she Ring. would have trouble in touch with Wallace had contact getting on at Right. Right nine least different occasions between November and 26, 2005. She testified that some of January these contacts were for tests and some of them were to see how drug “just [Right] Wallace found out doing.” and then through Right’s neighbor from that had found a a Right, Right job through temрorary at Hotel. agency working Peabody Wallace, recent were no drug problems there
According Wallace The only environment. problem or with Right’s problems had had She had changed jobs frequently. identified was Kight months. three residences over different and two past three jobs that she was was trying testified that she thought Kight Wallace about had no that she She also stated complaints job. doing good Kight. L.M. at the A.W.
There was hearing testimony had been the care of the foster They parents. were thriving and five months. home for at least two the same foster years worker, testified that she was services Laura a family Rogers, She Morgan. association with Raymond concerned about Right’s at the time of the first for THC had tested stated positive had refused all other 2004. review in November to do since October tests ADHS had attempted her not to had told that her former attorney to Rogers explaining because administered they tests submit any drug could not stated that she “really resulted in false positives. Rogers could even offer services tell what reunification [Kight] [ADHS] testified still of the case Rogers since adoption].” goal [was about the never asked with Kight, Kight during meetings car, drove children. did not have Rogers welfare of her another drove her to hearing. her to one and Wallace trial court did not allow visitation According Rogers, *4 for service had not asked any and her attorney Kight, Kight at the time of testified Rogers except transportation. care for two and five had been in foster years A.W. in care for a little over two months and that L.M. had been fostеr additional services Kight Rogers, offering years. According reunification. As far as the services not result in a successful would remanded, stated after her case was that were offered to her Rogers in with home visits and that those services mid-October began drug testing. about her since July testified history Kight employment 2003, at American Plastics until
2003. She worked September lacked She then she had to because she when resign transportation. for Cookie When company went work Company. Jackson 2004, for the business in she began working went out of early Hotel, from March 2003 where she worked part-time Peabody The Pea- at McDonald’s and King. addition to working Burger 404 had hired her full-time while she worked
body employment, for different and did for other banquets employers housekeeping hotels on the weekеnds. about a testified short
Kight period unemployment around when she fell some stairs October 2003 down and broke However, her ankle. after confronted ADHS with faxed being by records, admitted on cross-examination that she had hospital not broken her ankle down that she had stairs but falling jumped off the of a vehicle had tried to when she top moving prevent male from her guest leaving apartment. 2003,
In lived at Chance When she July Sobriety. uncle, she lived with different completed program, friends, mother. In with her November she lived in her own an mate. She in an apartment, apartment began living herself in she where until apartment by August she stayed moved into a in North house Little She testified Rock. that she allowed some Raymond Morgan move furniture help heavy into the house she could because not movе it herself. According she had seen five Kight, times since Morgan approximately July 2003 but had not been with him involved since romantically June 2003. she She testified that could not the one explain positive drug screen in 2004 and November that she had been clean and sober for two ADHS was successful in years. from preventing results of a hair-follicle test she had introducing negative had done at her own after the 2005 test expense January positive occurred in November 2004.
After the trial court terminated testimony, that it in the Kight’s parental rights, finding children’s best interests; that there was little likelihood that services to the family reunification; would result in successful children had been had out of the adjudicated been home for dependent-neglected, months, more than twelve and that effort despite meaningful ADHS to rеhabilitate the mother and correct conditions that removal, caused the mother had failed conditions. remedy The standard review in termination-of-parental cases is well-settled. v. Arkansas Human Johnson Services,78 Ark. S.W.3d (2002), court held:
When the issue is one the termination of involving parental there a rights, heavy burden the to party terminate placed upon is an extreme rem- of rights the Termination relationship. parental the Parental the natural of rights parents. of edy derogation and however, to detriment or destruction will enforced the not be rights, the The facts warranting and of child. well-being the health and be clear convinc- by must rights proven termination evidence, the the court’s evaluation of and in trial ing reviewing evidence, of clear and not unless the finding we will reversе court’s convincing Clear and evidence is erroneous. convincing clearly fact which will in the produce evidence is that degree proof be the to allegation sought finder a firm conviction regarding must In the we clearly questions, established. erroneous resolving to the of the trial court judge due the give regard opportunity that in matters we have noted Additionally, of witnesses. credibility children, will give great weight the welfare of we involving young the observations. trial judge’s personal must be based order forever terminating parental rights
An the evidence that the termination is in clear upon convincing child, the into consideration likelihood taking best interests harm by that the child will be and the caused adopted potential contact with the addition determining continuing parent. сhild, the court find clear and convincing best interests of must statute, exist according evidence that circumstances set of circumstances terminating One such justify parental rights. is that the child may support parental rights has been the court be adjudicated by dependent-neglected months, (12) has out of the home for twelve and despite continued a effort to rehabilitate home meaningful by department removal, caused those conditions have correct the conditions which that the necessary not been remedied It is not parent. of home (Citations twelve-month out be consecutive. period omitted.) Annotated 9-27-341 states: 2003)
Arkansas Code section (Supp. terminate The circuit court consider (b)(1)(A) may if the finds that there is an appropriate perma- for thе nency plan juvenile. placement be forever shall based (3) terminating parental rights upon An order clear and evidence: convincing finding *6 406
(A) That it best juvenile, is in the interest of the consid- including eration of the factors: following (i) The that the be likelihood will if the termina- juvenile adopted tion is and granted; harm, (ii) The the on potential specifically addressing effect the child, health and the by caused safety contact the continuing or parent, parents, putative parents, or and parent (B) Of one more of the (1) following or grounds: (i)(a) That a has been court juvenile adjudicated by the to be and has continued out of the dependent-neglected custody and, (12) for twelve months parent despite effort by meaningful to rehabilitate the and department correсt the conditions parent removal, that caused those have conditions not been remedied by the parent. That
(vii)(a) other factors or issuesarose subsequent filing original petition dependency-neglect demonstrate that return of the to the juvenile of the custody contrary is to the parent health, or and juvenile’s safety, welfare the offer of despite services, the has appropriate family manifested the parent incapacity or indifference to remedy subsequent issues or factors or rehabilitate the circumstances that parent’s prevent return of the juvenile of the custody parent.
For
first
trial
point
court
appeal, Kight argues
erred
not
this court’s mandate to
continue reunifica-
following
tion services. A lower court
is bound tо follow the mandate of a
court, and
conferred on the
superior
trial court
jurisdiction
upon
is
remand
bounded
the mandate and decision of the
superior
Barton,
court.
Dover v. A.G.
City
342 Ark.
specific court to continue to the trial this case with instructions and remand However, I, ADHS took services.” *7 reunification Kight supra. because still in еffect order was that the no-reunification position that it argues the termination order. Kight court reversed only to offer never intended that ADHS from the record is clear must Kight. services. We agree reunification meaningful the case at the for as to ADHS’s the trial court plan When inquired it antici- 23, stated that review ADHS hearing, November the and it did so same another petition, pated filing our court two months after This occurred only supreme day. after counsel for and six ADHS’s review only days denied in the case. been had Kight present appointed Moreover, be- forbade visitation the trial court specifically conducted a and her children and never separate tween Kight should have still been determine whether reunification hearing Instead, on it held a termination heаring the of the case. goal ADHS to continue The court never 2005. required February and, fact, services, not visit her ordered that Kight reunification children. reunifi- that it did
ADHS contends provide again appeal This contradicts its assertions cation services to Kight. argument At the the November 2004 February the trial court at hearing. however, the that ADHS took 2005 termination position came had been offered from the time case reunification services court, 2004. from the which back supreme September visits, test, ten characterized the home drug ADHS attempted tests, reunification to the two as and hearings transportation services. services, de- not did continue clearly I, This court found in its contrary. argument
spite clean and sober and was committed to remaining supra, that the not a rеasonable time to demonstrate that she was given be returned to her home. children could safely Nevertheless, not it must be noted that does challenge or to terminate her of the evidence rights sufficiency interests to terminate it was in her children’s best finding erred not that the trial court She only argues rights. mandate and that the trial court’s decision this court’s following The children in this case have now violated due-process rights. been out home since means that which January they have been of the home for out three L.M. years, approximately has been the home she was out of since born. Although delay in this case attributable to trial court in is ADHS and primarily in the first from the cannot now returned to the terminating erroneously Right’s place, children’s be they clearly perspective, home in a reasonable amount time. See Ark. Code Ann. Moreover, 9-27-341 it (a)(3) (Supp. 2003). significant § that caused the removal of children involved her problem Right’s both to and of the earlier drug usage during pendency THC, had tested for cocaine proceedings. Right positive at the time she birth to L.M. in both she and gave January L.M. testified for cocaine. to remand of this positive Subsequent case, use, she denied tested although any drug Right positive at THC when tested the time of her first review after remand, and she refused all The trial tests. subsequent drug found not credible after she lied under additionally Right oath *8 about the circumstances of her ankle injury. with
We remanded this case the instruction to specific continue reunification services. It is clear that did ADHS not very follow the or letter court’s or of this its mandate in spirit what it now the deems “reunification sеrvices” of offering tests, two rides home visits. hearings, investigatory Right was full-time and her had own home that she employed had furnished at time the of the termination so it is unclear hearing, what additional services she would have been other than seeking, However, visitation with children. we cannot under say the evidence at the termination it was reversible presented hearing, error to terminate without further Right’s rights services ordering time, to her at that despite outrageous contemptuous conduct of ADHS this case. also that the trial court’s decision violated the the Fourteenth Amendment of the
Right argues due-process rights provided by
United States Constitution
(1)
her
denying
meaningful
be
heard on the
of the
issue
mandate’s
opportunity
requirement
of continued reunification
services
her to
(2)
observe
requiring
a standard of conduct
of her
that is
during
pendency
appeal
without
or
precedent
statutory authority.
this
argues
is not
because
argument
failed
raise it at the
preserved,
Right
however,
trial level.
did ask the trial court to
Right’s attorney,
strike all
in the record
behavior
testimony
from
regarding Right’s
15, 2003,
terminated,
her
were
July
first
until
day
rights
after
review
the first
hearing
the date of
November
remand,
was to
notice that she
comply
had no
because Kight
attorney argued
Right’s
code of conduct during
period.
any
overruled
The trial court
her
rights.
that this violated
due-process
the record.
to strike
motion
Right’s
was
that no meaningful hearing
also
Kight argues
services. Mayberry
the issue of reunification
to consider
provided
court
Flowers,
(2002),
standard of conduct giving from were July standard. Right’s suspended entered, until this the first termination order when order in 2004. Kight argues the termination reversed June *9 time, the this no rights during even she though possessed It this to her conduct during period. trial court much weight gave note, however, that her case that was aware is to important the trial court no evidence that the There is was in process. appeal em of conduct on Right’s a standard Kight. imposed particular to maintain stable and her ability and stability history ployment to in the for the trial court consider factors were housing proper heard to be was the given opportunity termination hearing. Kight the trial court cannot therefore say at this We hearing. without due of her rights process. deprived care sum, have now been out Right’s these children L.M. has been for three with a foster years. family custody 410
with the foster she from since was released after family hospital her birth. Neither child has seen in over two The years. DHS, court noted in v. 364 Linker-Flores Ark. supreme recently 224, 217 S.W.3d a case that 107 had on for (2005), involving gone over four years:
Such the clear delay goes against legislative intent statute, which states: termination-of-parental-rights specifically The intent this section is in a provide permanency all juvenile’slife in instanceswhere the return juvenile of a health, home family contrary juvenile’s or safety, welfare and it from the evidence that appears a return home family cannot be in a reasonable accomplished period time from the asviewed Code juvenile’s Ark. Ann. perspective. (a)(3). 9-27-341 § in this case was measure caused
Unfortunately, delay large Nevertheless, ADHS. under the circumstances and evidence pre- sented at we cannot the trial court erred say on based either of terminating Kight’s parental rights arguments she has raised in this appeal.
Affirmed.
Glover, J., agrees. concurs.
Pittman,C.J., John MauzyPittman, Chief I Judge, concurring. agree However, the trial court’s decision should be affirmed. cannot with the agree statement that the termination majority’s must be affirmed trial parental rights because the court “erroneously in the Kight’s first therefore caused place” [terminated] irremediable It is true that matters decided on our delay. prior appeal are the law of the case and our actions on the govern present appeal extent we would be bound them even if wеre we now inclined that we were in those decisions. say Rich wrong Lunsford Mountain Electric Ark. 291 S.W.2d Coop, (1992). However, if blame is to be on a for the caused in placed delay case, we should it deal of Our good ourselves. place in this case based on Trout v. largely Arkansas
411 where 895 Services, (2004), 146 S.W.3d Ark. 84 Human of eleventh- erred trial court by disregarding appellant’s held that the we case, however, That reunification. made toward hour progress an Court in expressly Arkansas opinion reversed Supreme by attach weight not bound to significant the trial court was held that the fundamental restated prin- and which such tardy improvements, the trial of to the deference superior position that we give great ciple court, with and extended parties, observation experiencе through sincere, or instead are last-minute efforts determine whether rights. imminent termination a ruse to merely prevent Services, Ark. Human Trout Arkansas Departmentof S.W.3d 486 (2004). case, more in this we erred by giving
In our prior opinion than we did to sincerity to our regarding appellant’s weight hopes see, hear, and judge and ability the trial judge’s experience maintain were not her efforts to sobriety whether or first-hand in our we ourselves erred faith. Insofar as prior made in good enunciated by supreme eschewing principles opinion by bear a measure of Trout, I believe that we responsibility court in the resulting delay. statement Nor do I with majority’s agree Human Services in
conduct of the Arkansas Department It is remand was “outrageous contemptuous.” case following basis for had no reаsonable arguing that the ADHS true attorneys additional did not provide that our mandate require Nevertheless, that ADHS the fact remains services. reunification services by the field did provide agents attempt to visita- as a prerequisite re-instituting drug testing appellant case was occasioned the removal in this by tion. Insofar as because of inability proper parenting provide appellant’s first use, tests was the essential resumption illegal drug her refusal to reunification. the road to by Appellant, step tests, at reuni- to these any meaningful attempts submit precluded too, as well as has fication. submit responsibilities appellant, the addi- refusal to and that her outright cooperate rights, this court in our efforts ordered tional reunification the most contemptu- was fаr and “outrageous away to this case. behavior exhibited by any parties ous” result reached majority. I concur in the *11 411-A
SUPPLEMENTAL CONCURRING OPINION
ON DENIAL OF REHEARING 30, 2006
AUGUST Chief Judge, concurring. agree John Mauzy Pittman, correct, that the decision to affirm this case was but I do so for the reasons set out in to the concurrence delivered my on opinion March 2006 and not for the stated reasons (Kight II), It true that the had no reasonable majority. basis for attorneys that our mandate did not ADHS to additional arguing require provide Nevertheless, reunification services. the fact remains that ADHS services, in the field did agents attempt provide in were their do so own stymied refusal to attempts by appellant’s These new circumstances resulted in a cooperate. second terminate based on that events occurred aрpellant’s parental rights Given that the termina- subsequent hearing. events, tion order under review was based it was not subsequent barred initial our mandate.
The initial removal of the children in case was occa- sioned by appellant’s provide because inability proper parenting held, of her use. This drug court’s illegal original errone- issues; that had corrected her ously,1 appellant that a drug-abuse 1 suggest This is not to binding this court’s initial order is not because it was erroneous. It is axiomatic that a decision of an court the law establishes of the case appellate for trial and for remand itself on the review; second upon appellate upon subsequent of the first decision the law the becomes case and is conclusive of appeal, appeal every of law or fact decided in might the former and also of those which have question been, appeal, but were (2002). not, Linder v. Ark. Linder, 348 72 S.W.3d841 This court’s presented. decision in the first ordered that be designed with services appeal appellant provided her children to be returned to her remedy inadequacies permit custody. Implemen tation of this order, however, was made refusal of impossible by appellant’s subsequent services. For over hundred and it one has been the law State in the ofArkansas that fifty years, the doctrine of law of the case does not bind the inferior court arising with to matters respect to the decision of the Cunningham court. 13 Ark. subsequent 653 appellate Ashley, (1853). ago, One hundred the Arkansas Court held an years court’s Supreme appеllate judgment controlling is not on retrial evidence where the on the issue is materially presented different. Fire (1906). InsuranceCo. v. Ark. Enoch, 475, 96 79 S.W This rule was Hartford (1923), again 1923 in Carter v.Bates, 640, 249 158 Ark. S.W 355 in 1986 in repeated (1986). Potter v. Ark. 133, 703 S.W.2d442 Easley, doubt, Without a the trial court was our mandate I to required by provide reunification services. it maxim However, is a familiar of the law that lex cogit non ad
411-B
while services were
offered
into
use
being
relapse
and that it was
terminate
insufficient to
parental rights;
speculative
her co-
continue a
with
to believe
would
relationship
appellant
See
v. Arkansas
caine
Morgan.
supplier, Raymond
Services,
87 Ark.
Clearly, expressly was after this court’s mandate case ADHS appellant’s reopened by issued, issued. Even before our mandate ADHS began attempting to locate in 2004 as soon as it became aware of our July appellant 2004, 31, decision in I. At a review on Kight hearing August aware of the advised trial court was although appellant reversal and had been in contact with her she could not attorney, be located and had not contacted ADHS. con- Appellant finally tacted her on 2004. The was caseworker October and and resume visitation between the ready willing appellant However, the child. because use had been the cause of drug major the termination of was a appellant’s rights, drug testing to visitation. At a her caseworker meeting prerequisite arranged by thereafter, was informed that services shortly appellant drug testing would be resumed. This offer was angrily rejected by appellant, ADHS, who refused to take test that such any drug given by stating tests were a nuisance that her “interrupt[ed] plans.” Although had not seen her children for appellant approximately eighteen months at the did not mention or time meeting, appellant offered, about them at the was and inquire meeting. Appellant refused, 3, 6, 9, 17, tests on November and 21. drug Appellant attended a conducted on ADHS November 17. staffing meeting by it refusal to those services made for the trial impossibilia, appellant’s accept impossible change court tо with our mandate. This refusal constituted a in the circumstances comply drug-abuser where herself as a recovered who had I, presented appellant presented guilty backsliding been of minor desired time to who more only earnestly comply allegations concerning the case To characterize as the conduct same plan. appellant’s subject drug acknowledge abuse that were the I is to refuse to appellant’s asking drug abuse, difference between a mother for more time to recover from as elementary who, remand, to a mother on refuses to opposed utterly cooperate recovery. 411-C
A services with the worker Division of Child family Family Services testified that was intoxicated at that appellant meeting, slurred аnd a smell of on her breath and alcohol exhibiting speech was, result, she as directed to to the clothing. Although report test, to take a failed to do police department breathalyser appellant so. refused all but voluntary drug testing, Appellant required submit to a test the trial when at a drug judge she appeared on November 2004. denied Although appellant flatly use when she at the testified the results of that any drug visits, were test Home for the positive. necessary resumption children, ADHS, with the of visitation were also offered but at times refused to come to the door of her even home appellant she could be heard inside. did not though Appellant respond left *13 refusal to with the reunification services ordered our cooperate mandate madе reunification the trial impossible supported court’s of the second to terminate her grant rights.
SUPPLEMENTAL DISSENTING OPINION
ON DENIAL OF REHEARING 30,2006
AUGUST
with the
Judge, dissenting.
respectfully disagree
Sam Bird,
decision to
for rehear-
majority’s
deny appellant’s petition
A review of the
of this case is
ing.
for a full
pertinent history
necessary
31, 2003,
of this dissent. On
the Circuit
understanding
July
Court
Faulkner
entered orders
County
terminating
parental rights
Rolinda
to her two children.
those orders to this
Kight appealed
Services,
court. In
v. Arkansas
Human
Ark.
230,
411-D 23, 2004, November the trial court convened a review On to consider the status of the case. At that DHS that our reversal of orders argued July terminating had no effect on an earlier order of the court Kight’s that had reunification services. DHS’s suspended argument court, reflected in the between the DHS’s following colloquy ad litem (Finkenbinder), (Kendrick), attorney attorney Kight’s attorney (Heimbaugh): Finkenbinder, What is Mr. your position,
The Court: about reunification are services? What for? you asking Honor, Your last order of the Mr. Finkenbinder: — reunifica- suspended suspended tion services. The order of Court of Appeals only is, reversed the termination order. What means is, and the view that all orders to the Department’s prior termination order remain in effect.
The Court: You’re to have to break that down going
into Which means what? simple language. Mr. Finkenbinder: Which means that all the orders to the termination remain in effect. The case
didn’t All the did Court go away. Appeals say reversed, that the termination is so all the previous orders about of that nature drug testing things *14 remain in effect. The Court had ordered no already reunification. Honor,
Ms. Kendrick: Your the no-reunification order all, addressed, was not at or even so I would appealed, mean, it assume that is still in effect. I with her given chance, know, she can do what she can do now you — and she a new has But until I don’t know attorney. it doesn’t make a lot of sense.
411-E what, I tell I’m Ms. you going give
The Court: a chance to look into this. All of those Heimbaugh briefs are in office and can have them all. my you Ms. All I need Heimbaugh: Because to see right. why
the TPR was overturned. If it was overturned for services, like no reunification then that ar- something moot. gument’s Well, let’s this out for three or four put
The Court: weeks and let Ms. have an Heimbaugh opportunity over all the documents and I’ll her all the briefs go give officе, that I have in as well as the mandate from the my Court Appeals. 18, 2005,
The court continued the until hearing January announced that the on that date would “be a hearing hearing whether or not there would be reunification.” Before the hearing was DHS advised the court that it would be adjourned, filing for no-reunification services or another for ter- petition petition mination or both. The court announced that parental rights, there would be no visitation between and her children until think, after the “because I on the January hearing depending outcome of that we’ll either start fresh or we’ll not start later, 29, 2004, fresh. . . .” Six on November DHS filed days another to terminate petition Kight’s rights. 3, 2005,1
On the court convened February to consider again this matter. DHS that the announced was purpose hearing for the court to hear evidence on DHS’s November to terminate while petition Kight’s parental rights, Kight argued that DHS’s new termination should not be considered petition because reunification had services not been resumed as directed by mandate, this court’s and that the termination should be petition dismissed. The court denied motion to dismiss the termi- Kight’s nation filed on November proceeded hear evidence on it. 18,2005, January The Kight’s request was continued at because mother having surgery.
411-F
entered
orders
10 and
By
signed
February
February
2005, the Faulkner
Circuit
Novem
Court
DHS’s
granted
County
29, 2004,
ber
that
petition, again ordering
Kight’s
rights
parental
to her two children be terminated.
from those
Kight appealed
orders,
that the trial court had not followed the
arguing principally
30, 2004,
mandate of this court’s
reversed
June
trial court’s tеrmination of
and directed that
Kight’sparental rights
reunification servicesbe
continued.
Arkansas
Kight
Services,
Human
94 Ark.
The court maj of this that the trial ority acknowledges is bound our decision I as law the case. 2 I have searchеd the record both if but an do not find order of the trial Kight’s court that services DHS to children. suspended 411-G *16 the trial court
Nonetheless, that recognizing even while expressly as reunification services of the continuation declined to order mandate, to affirm the has decided the majority our by required rights. termination of Right’s parental trial court’s second the law of the its decision to disregard The justifies majority now does not challenge out that case by pointing its the trial court based which the evidence of upon sufficiency her disagree to terminate rights. second decision the evidence of sufficiency challenge obligated in rights in the second termination that resulted decision. Wal-Mart of the trial court’s to obtain a reversal order 494, 497, 156 356 Ark. Bank Trust Stores, v. Department, Inc. Regions court, 249, from Fortеn 252 our (2004), quoting S.W.3d supreme 200, Frazier, stated: Ark. 202 (1843), v. 5 berry or decreeas law isbound the by judgment inferiorcourt The case, to the man- it into executionaccording and must carry it, or examineit for judicially court cannotvary date. The inferior no other or further execution. It can give than other any purpose Court, evenwhere matter decided the by Supreme reliefasto any with it manner intermeddle or in any there is error apparent; mandate, mattersashave andsetdesuch than to executethe further remanded, Court. by Supreme not adjudicated, been Wilson, Furthermore, 335 Ark. in Dolphin court also cited with our 116 (1998), supreme S.W.2d 2d where it is stated “[a]ny 5 Am. from approval § Jur. to the directions which are on remand contrary proceedings be consid- from the may contained in the mandatе appellate ered null and void.” to rationalize is the attempt
Even more troubling majority’s of her children have been out its decision by noting Right’s therefore, and, be “cannot than three home for more years time,” even amount of the home in a reasonable returned to in this case is that “the observes delay majority though and the trial court erroneously attributable to ADHS primarily of this . . . .” The result in the first place terminating Right’s time, virtue of the court is by lapse our simply reasoning by the trial court case in which will every DHS ultimately prevail chooses to and DHS that is reversed on commits error appeal on remand. our mandate ignore
411-H our remand of this case to the trial court Simply put, upon services,” with directions “continue the trial court was without to do but to order the cоntinu- jurisdiction anything ation of services DHS with the reuniting goal children. The court was not to examine “whether” empowered reunification services should be the court provided, clearly lacked to consider a new jurisdiction DHS petition by seeking terminate Under Kight’s parental rights. Dolphin, supra, any pro- conducted trial court that were ceedings contrary mandate were null and void. the trial Kight’s appeal challenging court’s jurisdiction under the doctrine of the law case was sufficient to also *17 of the court’s orders that challenge validity terminated her court’s parental rights contrary June 2004, mandate, without to also whether there having challenge was sufficient evidence to the trial court’s unauthorized support action. II,
With this court’s
in
our
coupled
denial of
for
Kight’s
trial courts are
at
petition
rehearing,
now
this court’s mandates in
liberty
ignore
parental-termination
cases,
dead,
the rule of the law of the
case
and trial courts are free
to take whatever action
deem
they
notwithstand-
may
appropriate,
our mandates’
directives to the
ing
specific
contrary.
I would
grant
remand
again
rehearing
this case to the trial court with instructions to
with the
comply
I,
mandate
to the law of
the case. am
pursuant
authorized
Hart
say
Judge
joins
this dissenting opinion.
notes
door or to
left on her cell
messages
phone.
her refusal
to submit
or
Appellant, by
drug testing
services,
in other
cooperate
necessary
precluded any meaningful
at reunification. The law does not
a vain and
attempts
require
act,
State,
useless
Noble
326 Ark.