Bushee v. Arkansas Dept. of Human Services

Cite as 2016 Ark. App. 339

ARKANSAS COURT OF APPEALS
DIVISION III
No. CV-16-177

TIFFANY BUSHEE Opinion Delivered June 22, 2016
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. JV15-9]

ARKANSAS DEPARTMENT OF HONORABLE STACEY
HUMAN SERVICES and MINOR ZIMMERMAN, JUDGE
CHILD
APPELLEES DISMISSED WITHOUT PREJUDICE

RITA W. GRUBER, Judge

Tiffany Bushee appeals from certain adverse findings included in a permanency-

planning order entered by the Washington County Circuit Court in this dependency-neglect

case. In a jointly filed brief, the Department of Human Services (DHS) and the attorney ad

litem contend that, because the permanency-planning order is not a final and appealable order

and because the circuit court’s Rule 54(b) certificate is defective, this court has no jurisdiction

to consider Ms. Bushee’s appeal. We agree, and we dismiss the appeal without prejudice.

This case began when DHS took Ms. Bushee’s son, D.B. (born 4/21/14), into

protective custody on January 1, 2015, in response to allegations of the mother’s substance

abuse and parental neglect. The circuit court adjudicated D.B. dependent-neglected on

February 19, 2015, with the stated goal as reunification with Ms. Bushee. The court ordered

Ms. Bushee to continue to submit to weekly drug-and-alcohol screens; to participate in

individual counseling; and to maintain stable housing and employment. After the adjudication
Cite as 2016 Ark. App. 339

hearing, DNA testing showed Gerrod Holmes to be D.B.’s biological father. On June 10,

2015, the court granted DHS’s motion to deny Mr. Holmes visitation based on Mr. Holmes’s

unresolved criminal charges and failure to submit to drug screens.

In a review order entered on July 15, 2015, although the circuit court found that Ms.

Bushee had attended counseling, attended AA meetings, attended visitation, maintained stable

housing and employment, and completed a psychological evaluation, the court expressed

concern that she continued to use illegal drugs and had not maintained her sobriety. The

court also found that Mr. Holmes had not resolved his criminal fines and had tested positive

for illegal drugs in May. The court continued Ms. Bushee’s supervised visitation with D.B.,

authorized Mr. Holmes to have supervised visitation, and ordered both parents to pay child

support. Then, on July 20, 2015, pursuant to the ad litem’s motion for an emergency hearing,

the court discontinued Ms. Bushee’s visitation and ordered her to enter and complete

inpatient substance-abuse treatment.

On November 4, 2015, the court held a permanency-planning hearing in which it

found that Ms. Bushee had not complied with all of the court orders and case plan, specifically

noting that she had not adequately addressed the drug and alcohol issues that caused DHS to

take custody of D.B. and had not paid child support. But the court continued her twice-

weekly supervised visitation. The court found that Mr. Holmes was in compliance with the

case plan and had paid his child support; it continued his weekly one-hour supervised

visitation and added unsupervised visits every other Saturday for four hours. The court

continued the goal of reunification and set a fifteen-month permanency-planning hearing for

2
Cite as 2016 Ark. App. 339

January 29, 2016. At the conclusion of the hearing, Ms. Bushee’s counsel asked the court to

enter a Rule 54(b) certification. The court entered a permanency-planning order with an

attached 54(b) certificate on December 11, 2015. Ms. Bushee filed this appeal.

Arkansas Supreme Court Rule 6-9 provides that the following orders may be appealed

from dependency-neglect proceedings:

(A) adjudication order;

(B) disposition, review, no reunification, and permanency planning order if the court
directs entry of a final judgment as to one or more of the issues or parties based upon
the express determination by the court supported by factual findings that there is no
just reason for delay of an appeal, in accordance with Ark. R. Civ. P. 54(b);

(C) termination of parental rights;

(D) denial of right to appointed counsel pursuant to Ark. Code Ann. § 9-27-316(h);
and

(E) denial of a motion to intervene.

Ark. Sup. Ct. R. 6-9(a)(1) (2015). The order appealed from in this case is a permanency-

planning order; therefore, in order for it to be appealed, the court must have complied with

the requirements of 54(b). Id.

Pursuant to Rule 54(b), “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.” Ark. R. Civ. P. 54(b) (2015). Merely tracking the

language of the rule will not suffice; “the record must show facts to support the conclusion

that there is a likelihood of hardship or injustice which would be alleviated by an immediate

3
Cite as 2016 Ark. App. 339

appeal rather than at the conclusion of the case.” Edwards v. Ark. Dep’t of Human Servs., 2015

Ark. 402, at 6, 474 S.W.3d 58, 61. Not only must the record show such facts, but the order

must include “specific findings of any danger of hardship or injustice that could be alleviated

by an immediate appeal and . . . set out the factual underpinnings that establish such hardship

or injustice.” Id. (citing Holbrook v. Healthport, Inc., 2013 Ark. 87, at 4).

We turn to the Rule 54(b) certificate issued by the circuit court in this case:

With respect to the issues determined by the above judgment, the Court report,
recommendations of the Department of Human Services, and the attorneys state that
mother is in compliance with the case plan and orders. Father is representing himself
in the proceedings. The Court ordered graduated visitation between the child and the
mother. The Court called its own witnesses pursuant to Arkansas Rules of Evidence
Rule 614, and the Court found, based upon testimony, exhibits and other matters
properly before the Court, that mother is not in full compliance with court orders and
that she shall not have expanded or unsupervised visitation. These findings may affect
the mother’s rights and ability for reunification which is the goal of the case. Further,
based upon testimony, exhibits and other matters properly before the Court, the Court
granted the father unsupervised visits against the recommendation of the attorneys. A
hardship or injustice may result if this appeal is not permitted.

Upon the basis of the foregoing factual findings, the Court hereby certifies in
accordance with Rule 54(b)(1), Ark. R. Civ. P., that it has been determined there is
not just reason for delay of the entry of final judgement and the Court has and does
hereby direct that the judgment shall be final for purposes of appeal.

Although the certificate does set forth findings that the circuit court made in its permanency-

planning order and concludes by stating that a hardship or injustice may result if an appeal is

not permitted, the certificate does not tie the findings to its conclusion. That is, the certificate

does not explain exactly what constitutes the hardship or injustice or explain how it could be

alleviated by an immediate appeal. The permanency-planning order did not award permanent

custody to anyone, change the goal of the case, or eliminate services or visitation. Indeed, the

4
Cite as 2016 Ark. App. 339

court scheduled a second permanency-planning hearing for three months later. Although the

court did state in its certificate that its findings could affect Ms. Bushee’s “rights and ability

for reunification,” the court did not explain how this finding constituted a particular hardship

or injustice that would be alleviated by an immediate appeal rather than an appeal at the

conclusion of the case. We hold that the Rule 54(b) certificate does not satisfy the

requirements of Ark. Sup. Ct. R. 6-9(a)(1) and Ark. R. Civ. P. 54(b). Accordingly, we lack

jurisdiction to hear the appeal.

Dismissed without prejudice.

ABRAMSON and VIRDEN, JJ., agree.

Tabitha B. McNulty, Arkansas Public Defender Commission, for appellant.

Jerald A. Sharum, Office of Chief Counsel, for appellee.

Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

5