Lois PRICE, Appellant v. Patrick CARVER and Danna Carver, Appellees
No. CV-16-551
Court of Appeals of Arkansas, DIVISION III.
February 8, 2017
2017 Ark. App. 75
We hold that the trial court clearly considered the potential harm these children would face if returned to the Beans and correctly found TPR to be in their best interest. The circuit court found that the Beans failed to remedy the conditions that caused the initial removal; accordingly, the children would be at risk of potential harm for the very same reason they were initially removed. Additionally, C.B. 4 would face potential harm based on the parents’ inability to benefit from all the prior ADHS supervision and other services and be the fit parents he needed. The trial court rightly relied on the record of the parents’ level and consistency of compliance in the entire dependency-neglect case and evidence presented at the TPR hearing in making its decision whether it was in the children‘s best interest to terminate parental rights.
Furthermore, this court can affirm the trial court‘s decision for any reason so long as it is correct. Alexander v. Chapman, 299 Ark. 126, 771 S.W.2d 744 (1989). The evidence at the TPR hearing undisputedly indicated that the Beans were in no position to have the children returned to their custody at the time of TPR because the lease on their home was set to expire, and they had not secured new living arrangements. Without the ability to provide a stable home—let alone an environmentally safe home—the Beans would again expose the children to potential harm. The evidence of Mr. Bean‘s continued financial and employment instability also supports the trial court‘s finding of potential harm.
After considering the potential harm, the trial court correctly found that TPR was in these children‘s best interest. The three older children had been in foster care for fourteen months at the time of the TPR hearing with no clear plan for reunification, and C.B. 4 had been subsequently adjudicated dependent-neglected as well. Further delay would go against the clear legislative intent of the TPR statute, which is to provide permanency in a time frame consistent with the child‘s development, not the parent‘s. Linker-Flores v. Ark. Dep‘t of Human Servs., 364 Ark. 224, 217 S.W.2d 107 (2005). Stability and permanence for children are the objectives of the TPR procedure, and living in continued uncertainty is itself potentially harmful to children. See Bearden, supra.
Affirmed.
Gruber, C.J., and Brown, J., agree.
Walthall Law Firm, P.A., by: Cecilia Ashcraft, Malvern, for appellees.
RITA W. GRUBER, Chief Judge
Lois Price appeals the order of the Circuit Court of Hot Spring County that denied her petition to quiet title in a strip of land in Malvern, Arkansas, along a property line separating her lot from the lot of Patrick and Danna Carver. Ms. Price contends (1) that the circuit court‘s ruling was clearly erroneous because she proved her claim by adverse possession and (2) that she was denied due process because the court failed to provide a language interpreter for one of her witnesses. We dismiss the appeal for lack of a final order because the Carvers’ counterclaim has not been resolved.
Ms. Price then filed an amended complaint. The Carvers filed a motion to dismiss her petition and an answer to her amended complaint, and Ms. Price filed a response to their motion to dismiss. At the conclusion of a hearing, the court converted the motion to dismiss to a motion for summary judgment and postponed a decision so that Ms. Price could respond to a pretrial brief the Carvers had filed the same morning. The court denied the summary-judgment motion by written order on January 26, 2016, finding that there were material issues of fact to be determined at trial.
The case proceeded to a bench trial. In an oral ruling at the trial‘s conclusion, the court denied Ms. Price‘s petition to quiet title. The court‘s written judgment, entered on March 9, 2016, reads in pertinent part:
1. The property line separating the parties in this cause of action [is] as outlined on the attached surveys of Hurley C. Clinton dated August 22, 2014 and Justin Randall West dated August 23, 2015. . . .
2. The Plaintiff has failed to establish any entitlement to damages and thus her prayer for damages is denied.
3. The Plaintiff has failed to meet her burden of proof to establish the claim of any portion of the Defendants’ land as required by law in the State of Arkansas. Therefore the Plaintiff‘s Petition is denied.
4. Both parties’ request for attorneys’ fees is denied.
The question of whether an order is final and appealable is jurisdictional, and we are obligated to consider the issue on our own even if the parties do not raise it. LaRue v. Ground Zero Constr., Inc., 2014 Ark. App. 93, at 4. The requirement that an order must be final and appealable is observed to avoid piecemeal litigation. Id. at 5. See
An order is not final when it adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties. Bulsara v. Watkins, 2010 Ark. 453. However, entry of a final judgment for fewer than all claims is allowed under the following circumstances:
(1) Certification of Final Judgment. When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third party claim, or when multiple parties are involved, the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination, supported by specific factual findings, that there is no just reason for
delay and upon an express direction for the entry of judgment. . . . (2) Lack of Certification. Absent the executed certificate required by paragraph (1) of this subdivision, any judgment, order, or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the judgment, order, or other form of decision is subject to revision at any time before the entry of judgment adjudicating all the claims and the rights and liabilities of all the parties.
We take this opportunity to note that Ms. Price‘s brief fails to follow our briefing rules and, in some instances, contains errors and actual misstatements. An appellant‘s brief must follow the requirement that “[r]eference in the argument portion of the parties’ briefs to material found in the abstract and addendum shall be followed by a reference to the page number of the abstract or addendum at which such material may be found.”
The statement of the case in Ms. Price‘s brief is replete with incorrect references to addendum pages on which rulings of the court, posttrial briefs, and even the notice of appeal should be found; additionally, the statement often lacks, or incorrectly cites, pages of abstracted testimony. The brief‘s argument section includes an “introduction” failing to indicate that certain statements are found in an affidavit and referencing an addendum page that does not comport with record pages. At argument page 4, statements regarding an affidavit and testimony by two witnesses refer to an abstract page with testimony by a different witness. At argument page 5, the following statement appears: “The Appellant and her predecessor believe that this fence indicated the property line. (R 227) (ADD 176).” Record page 227 is the affidavit of another person, and Add 176 is one page of a deed of trust. Pages 5 and 6 of the argument discuss the “attempted” testimony of Jacinto Ramos but lack reference to the abstract. Should Ms. Price again appeal after obtaining a 54(b) certificate, she should carefully follow Rule 4-2(a)(7) and take care that her brief does not contain deficiencies such as those we have listed—a list that is not to be taken as exhaustive.
Dismissed without prejudice.
Gladwin and Brown, JJ., agree.
RITA W. GRUBER
Chief Judge