Brewer v. Arkansas Department of Human Services

Olly NEAL, Judge,

concurring in part; dissenting in part. I concur with the majority’s holding with respect to the chancellor’s finding that Logan Brewer is a dependent-neglected child and the chancellor’s refusal to place Logan in the home of his paternal grandmother. However, I disagree with the majority’s holding that a chancery court has jurisdiction to determine that a person has committed a felony assault.

In its substituted opinion, the majority adopts a rule allowing a juvenile judge to determine that a person has committed a criminal act regardless of the fact that the person has been neither convicted of nor charged with violating the criminal law. The juvenile court has jurisdiction over proceedings in which a juvenile is alleged to be dependent-neglected. Ark. Code Ann. § 9-27-306(a)(l) (Repl. 1998). The Arkansas Constitution, however, grants the circuit courts exclusive jurisdiction over felony charges. Ark. Const, art. 7, § 11. See also State v. Pulaski County Circuit Court, 326 Ark. 886, 934 S.W.2d 916 (1996).

In the instant action, the Arkansas Department of Human Services (DHS) alleged that appellant had committed a felony assault on her daughter in its request that the court refuse to order reunification services, and in arriving at its decision to refuse to order the services, the court determined that appellant had in fact committed such a felony.¹ The determination of whether a person has committed a felony is reserved to the circuit courts. Consequently, the chancery court was without jurisdiction to make that determination.

The issue presented in this case is analogous to that addressed by our supreme court in In the Matter of Estate of F.C., 321 Ark. 191, 900 S.W.2d 200 (1995). In that case, the mother of a child filed a petition with the probate court for appointment of an administrator and a petition for paternity, claiming that her child was the illegitimate daughter of the deceased. The mother stated that she filed the petitions for the sole purpose of entitling the child to whatever military and other government benefits she would be entitled to as a result of the deceased being her natural father. In Arkansas, probate courts have jurisdiction over the administration, setdement, and distribution of decedents’ estates and the determination of heirship. Ark. Code Ann. § 28-1-204 (1987). Chancery courts, however, have concurrent jurisdiction with the juvenile division of chancery court in cases and matters relating to paternity. Ark. Code Ann. § 9-10-101 (Repl. 1998); Ark. Code Ann. § 16-13-304(b)(9) (Repl. 1999); Ark. Const, amend. 67. The code further provides that an illegitimate child may inherit property from her father in certain circumstances. Ark. Code Ann. § 28-9-209 (1987). One of those circumstances is that a court of competent jurisdiction has established the paternity of the child or has determined the legitimacy of the child. Id. In In the Matter of Estate of F.C., supra, the supreme court held that Ark. Code Ann. § 28-9-209 clearly contemplates that even where the illegitimate child is attempting to inherit property from her father, the probate court cannot establish paternity or determine the legitimacy of the child because it is not a court of competent jurisdiction.

Notably, the language used in the statute at issue in In the Matter of Estate of F.C., is identical to the language at issue in the instant action. The holding in In the Matter of Estate ofF.C. appears to stand for the proposition that when the phrase “court of competent jurisdiction” is employed in a statute to refer to a particular type of judicial determination, that phrase describes the court traditionally empowered to decide that particular type of issue. Yet, in the instant action, the majority holds that a chancery court may make the determination constitutionally reserved to the circuit courts that a person has committed a crime.

In Arkansas, no offense has been designated “felony assault.” Instead, the legislature has labeled aggravated assault as a Class D felony. Ark. Code Ann. § 5-13-204 (Repl. 1997). A person commits an aggravated assault, “if, under circumstances manifesting extreme indifference to the value of human life, he purposely engages in conduct that creates a substantial danger of death or serious physical injury to another person.” Ark. Code Ann. § 5-13-204(a). Thus, for the chancellor to have determined that appellant committed a felony assault, it had to determine that appellant purposely engaged in conduct that created a substantial danger of death or serious physical injury to a child under circumstances manifesting extreme indifference to the value of human life.

The substituted opinion recites, “The beginning point in interpreting this statute, as with all statutes, is to construe the words just as they read and to give them their ordinary and accepted meaning. The basic rule of statutory construction is to give effect to the intent of the legislature, making use of common sense.” (Internal citations omitted.) The majority goes on to conclude that if the legislature had meant to require a conviction for a felony assault by the circuit courts that it would have said so. The legislature does just that in Ark. Code Ann. § 9-27-341 (b) (3) (B)(ix). In addressing the termination of parental rights, the code provides in relevant part that an order terminating parental rights shall be based upon a finding by clear and convincing evidence that:

(ix)(a) The parent is found by a court of competent jurisdiction to:

(1) Have committed murder or voluntary manslaughter of any child or to have aided or abetted, attempted, conspired, or solicited to commit such murder or voluntary manslaughter;

(2) Have committed a felony assault that results in serious bodily injury to any child;

(3) Have subjected the child to aggravated circumstances; or

(4) Having had his parental rights involuntarily terminated as to a sibling of the child.

Ark. Code Ann. § 9-27-341 (b) (3)(B)(ix)(u). The statute continues, “Nothing in this chapter shall be construed to require reunification of a surviving child with a parent who has been found guilty of any of the offenses listed in subdivision (b)(3)(B)(ix)(a) of this section.” Ark. Code Ann. § 9-27-341(b)(3)(B)(ix)(6). (Emphasis added.) In determining the intent of the legislature, this court must also look at the whole act and, as far as practicable, give effect to every part, reconciling provisions to make them consistent, harmonious, and sensible. Brandon v. Arkansas Pub. Serv. Comm’n, 67 Ark. App. 140, 992 S.W.2d 834 (1999). Here, save use of the words “determined” and “found,” the language of section 9-27-303(35)(c) and section 9-27-341 ((b) (3) (B)(ix)(«) is identical, and the legislature makes clear that “found by a court of competent jurisdiction to have committed aggravated assault” means “found guilty.” When we view the juvenile code as a whole, common sense, harmony, and consistency dictate that the phrase “court of competent jurisdiction” be given the same interpretation in both sections.

Moreover, had the legislature intended for the refusal to order reunification services to be based solely on a chancery court’s determination, it would not have employed the word “felony” with all of its criminal undertones. Rather, the legislature would have simply allowed a chancery court to determine that a person has committed an assault, a civil injury, resulting in a serious bodily injury to a child. Furthermore, if the legislature had intended to authorize the chancery court that was hearing the adjudication or termination petition to determine whether the parent had committed such a felony assault, surely it would have simply referred to “the court” rather than a “court of competent jurisdiction.”

The repercussions of allowing the chancery court to determine that a person has committed a felony assault absent a conviction are obvious. What if the parent has been found not guilty of an aggravated assault on a child other than the one that is the subject of a dependent-neglected hearing prior to a chancellor’s determination that the parent has committed a felony assault? Nothing in the substituted opinion or the statute would prevent the refusal to order reunification services in such a situation. Even worse, what if a circuit court finds a parent not guilty of aggravated assault after the chancellor has refused to order reunification services based on the chancellor’s determination that the parent committed the assault? Again, the substituted opinion provides no answer or guidance as to how our courts would rectify such conflicting results.

Hart, Robbins, and Roaf, JJ., joins.

1 As stated in the substituted opinion, one of the grounds on which a court can refuse to order reunification services is if a court of competent jurisdiction has determined that the parent subjected the child to aggravated circumstances. Ark. Code Ann. § 9-27-303(35)(c)(l). The term “aggravated circumstances” includes a determination by ajudge that there is little likelihood that services to the family will result in successful reunification. Ark. Code Ann. § 9-27-303(48).

In the instant action, Cheryl’s statements that on one occasion her boyfriend had to keep her from “going after” Makila and that she told her boyfriend “we have to stop” after Makila was taken to the hospital indicate that she may have been an active participant in the abuse that resulted in Makila’s injuries. However, as neither DHS nor the majority raise the argument, a dissenting opinion is not the proper place to consider the alternative theory that the court might have refused to order reunification services because Cheryl subjected Logan to circumstances indicating that those services would have likely been futile by giving birth to him in such close proximity to the time that her other daughter was being physically abused.