New Rules in Dependency-Neglect Appeals By Anthony L. McMullen '
For a number of yea rs,
COUfts
have been
allt: lIlpl ilt~
Lu prOleCl lhe: clue-process rights of parems while protecting the rights of children l'O live in a permanenc, safe environmeIH. A criticism of the process in dependency- neglect cases is the length of time berween rhe term ination of a parent's rights and the di sposition of rh e subsequent appeal, which averaged to be 443 days. ' With the goal of limidng rhe record in dependency-neglect cases, cunailing extensions, and expediting appellate process, the Arkansas Supreme Coun adopted Rules 6-9 and 6-10 of the Arkansas Supreme Co urt and C ourt of Appeals. which went into effect on July 1.2006.3 This article pro-
me
vides a quick review of the new rules. Rule 6-9(a} addresses the orders from which an appeal may be taken in dependency-neglect proceedings. A5 before the adoption of the new ruJe, the adjudication and termination orders are appealable, as are dispositi o n, review, and perman ency-planning orders that co mply with the dictates of Ark. R. Civ. P. 54(b}.4 However, the denial of the right ro appo inted counsel is now expressly provided an appealable order under the new rules.' Rule 6-9(a} also obligates circuir co urts ro enter orders in dependency-neglect proceedings no later than thirty days after dl e heari ng.6 Beca use the rule places such a burden, those courtS that o rder th e prevailin g atrorn ey ro prepare the o rders sho uld ensure that those orders are prepared and app roved as to form in a timely manner. Rules 6-9(b} and (c) simplifY the record in dependency-neglect cases. Before the new rules, an appeal from a termination order mi ght require a multi-volume record that cou ld exceed one thousand pages. This comes at a substantial cost to whoever is paying for the transcript. The new rules purport ro reduce this cost. First, rather than filing a normal Notice of Appeal and Designation of Record, the Supreme Cou rt has created forms that must be completed, fil ed. and served o n the court reporter and all partie.s J The Notice of Appeal and Designation of Record must be signed by both counsel and appel lant, if the appellanr is an adult. 8 By requiring the parent ro sign the notice of appeal, this provision will hopefully encourage appell ants to maintain contact with
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counsel throughour the appellate process. Second, me appel late reco rd in dependen cy-neglect cases is now limited ro the tran script of the hearing from which the order on appeal arose plus those petitions, pleadings, o rders, and exhibits relevanr to said hearing. 9 Whi le this substa ntiall y reduces the appell ate record (s urely to be a relief to co urt repo rters and record abstracro rs), attorneys in dependency-neglect cases must be more mindful of appellate pracdce at the trial level. The circuit court is still required under the Arkansas Code ro rely upo n the reco rd in the entire dependency-neglect case in making a decision to terminate parental rights, IO but appel late courtS will be unable tu review lhe history of a case unless that hi story is developed at the termination hearing or the hearing from which the appealed ruling results. Therefore. while the new rules may reduce the cost of preparing a record in dependency- neglect cases, ir puts a burden on trial attorneys to ensure thar the record is fu lly developed at each stage of th e proceed IIl gs. Rule 6-9 has its biggest impact on the speed of the appellare process. The time for filing [he No<ice of Appeal has been reduced [Q fourteen days, down from thirty days under the Rules of Appellate Procedure. I I The record on appeal must be completed and ccnifi cu Williill :.ixly days of filing [he noti ce of appeal, and th e record mUSt be filed with the clerk of the Supreme Court within seventy days of filing the notice of appeal. 12 Once the record is lodged, the appellant must file his or her brief with.in rwenty days. 13 The appellee(s} will have twenty days to respo nd , and the appellant will have ten days to reply to the response. 14 These time limits are less than th e forty days to file the brief, thirty days to respond , and fifteen days to reply under the o ld rules." The argu ment section is now limited to twemy pages in dependency-neglect appea1s. 16 Extensions are now limited to one per parry (a lit.! uut: for rhe completion of the record) , and such extensio ns are limited to seven days.1 7 Once a dependency-neglect case is ready for su bmission, it is immedi ately sub mitted to th e rev iewi ng co urt. 18 Finally, petitions for rehearing and for review are to be filed within fi ve days of the
appell ate mandate, reduced from eighteen days under the original rules. Rule 6- 10 delineates counsel's responsibilities in dependency-neglect appeals. Under the new rule, trial co unsel is requi red to represent his or her client until permitted to withdraw by the appropriate coun.20 Once th e mandate is iss ued by the reviewing court, an attorney has thirty days to submit his o r her motion for fees. 21 While nor parr of the new rules. anorneys who represent clients in termination cases shou ld become familiar with the procedure for no-merit appeals under Ark. Sup. Ct. R. 4-3(j), which was inco rporated into termination appea ls by the Suprem e Cou rt in Linker-Flores v. Arknmas Department of Human Servias 22 in 2004. T he new rules have been in effect for on ly a brief period of time; therefore, it is toO early to tell if they will indeed reduce me costs and length of dependency-neglect appeals. Of course, nothi ng is a substitute for reading the actual rules; those invo lved in depend ency- neglect cases--even if rhey arc not invo lved in ap pellate practice-arc encouraged to become fam il iar with the new rules and, if necessary. incorporate them into their practice to ensure that they are competently representing their clients. Endnotes: I. Anthony L. McM ull en, J.D. (U ni versity of Arkansas, 2004) is a law clerk for Judge Wendell Griffen of [he Arkansas Court of Appeals. Any opinions expressed herein are solely those of the author and do not reAect the o pini o ns of Judge Griffen o r any employee of the Arkansas Cou rt of Appeals.
2. Su In rt:: Proposed Rilles for Appeals III Depmdmcy-Negkcl eases, 365 Ark. Appx. _, _ (2006) (hereinafter "Pro posed Rules"). In Menzies v. Ark. Dep't of Hllm. Servs., CA 03- 1237 (Dec. 14, 2005), 982 days passed from the entry of the terminatio n ord er and the appellate decision. Id 3. See Proposed Rilles, 365 Ark. Appx. at _ ; In re: Adoption of Rules 6-9 and 6-10 of the Rules of tlu Supreme Court and Court of Appeals, _ Ark. Appx. _ (May 18, 2006).
Endnotes continued on page 45