LaMontagne v. Ark. Dep't of Human Servs.

2010 Ark. 190

366 S.W.3d 351

Linda LAMONTAGNE, Appellant,

v.ARKANSAS DEPARTMENT OF HUMAN SERVICES and S.S., Appellees.

No. 09–859.

Supreme Court of Arkansas.

April 22, 2010.

Leah Lanford, Little Rock, for appellant.

Tabitha B. McNulty, Office of Chief Counsel, Little Rock, and Chrestman Group, PLLC, by: Keith L. Chrestman, Jonesboro, for appellees.

RONALD L. SHEFFIELD, Associate Justice.

The Arkansas Court of Appeals certified this case to this court as an issue in which there is a perceived inconsistency in the decisions of the supreme court, an issue of substantial public interest, and a significant issue needing clarification or development of the law or overruling of precedent. Thus, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1–2(b)(2), (4), and (5) (2009).

Appellant Linda Lamontagne appeals the decision of the Washington County Circuit Court awarding custody of her daughter, S.S., to her other daughter, Danielle Sexton. On appeal Lamontagne asserts that the trial court erred in granting permanent custody of the minor child to the child's sister under a previous version of Ark.Code Ann. § 9–27–338 (Repl.2009), rather than the amended version, changes to which had become effective on April 6, 2009. The effective date was two days prior to the permanency planning hearing and resulting order, wherein the court found that Lamontagne had made significant progress but was not ready to take immediate custody. Lamontagne appeals from this order.

On January 15, 2008, Linda Lamontagne, while intoxicated, crashed the vehicle in which she and S.S. were riding. Four-year-old S.S. was hospitalized for her injuries. The Arkansas Department of Human Services (DHS) took the child into emergency custody. S.S. was found to be dependent-neglected by the circuit court pursuant to an order entered March 18, 2008, and ordered to remain in the custody of DHS with a case goal of reunification with the parent. The child was placed in the temporary custody of Tim and Danielle Sexton, S.S's sister and brother-in-law. The court also ordered Lamontagne to undergo both psychiatric and psychological evaluation. At a permanency planning hearing on January 7, 2009, the circuit court judge found that Lamontagne was making significant progress and working toward the goal of reunification. The court also found that reunification would likely occur within six months of the hearing as long as Lamontagne was in frequent, consistent individual counseling and sought treatment by a psychiatrist. The court ordered the child to remain in the temporary custody of the Sextons.

At the fifteen-month permanency planning hearing, on April 8, 2009, the circuit court ceased reunification services and found, based on Ark.Code Ann. § 9–27–338, that it was in the best interest of the child to award permanent custody to the Sextons and allow Lamontagne visitation on Saturdays. The court allowed for a re-opening of the case in the future if Lamontagne could show that she had made progress with regard to maintaining her psychiatric medication and had entered counseling with the family. Lamontagne appeals the circuit court's decision.

On appeal, Lamontagne argues that the trial court erred in awarding permanent custody to the child's sister. Lamontagne contends that the trial court should have continued efforts to award custody to her based on the amended statute Ark.Code Ann. § 9–27–338 (Repl.2009). Lamontagne asserts that the trial court, however, relied on the previous statute and found that, based on the order of preference, custody was awarded to S.S.'s sister. Lamontagne argues that if the trial court had followed the amended statute, the preferred goal would have been to continue reunification efforts with the child and mother rather than to award permanent custodial placement with the sister. DHS counters that, assuming the trial court erred in awarding custody, Lamontagne did not preserve the point on appeal by properly raising the issue during the hearing. DHS argues that Lamontagne was required to object and raise the issue at the trial court level. Because Lamontagne did not, DHS contends that she is barred from raising the point for the first time on appeal.

This case was certified to this court to address a perceived inconsistency in prior case law regarding arguments raised for the first time on appeal. Although we have held in the past that we will not consider arguments raised for the first time on appeal, in Jones v. Abraham, 341 Ark. 66, 15 S.W.3d 310 (2000), we held that a contemporaneous objection was not required to obtain review on appeal. This court stated that de novo review of chancery court decisions had no such requirements. We are asked to review the Jones decision in view of our other holdings on this issue.

We have stated before that this court reviews findings in dependency-neglect proceedings de novo, but we will not reverse the trial judge's findings “unless they are clearly erroneous.” Wade v. Ark. Dep't of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court, based on the entire evidence, is left with a definite and firm conviction that a mistake has been committed. Furthermore, this court defers to the trial judge's evaluation of the credibility of witnesses. Crawford v. Ark. Dep't of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). With regard to arguments raised for the first time on appeal, we have stated that “ [d]e novo review does not mean that this court can entertain new issues on appeal when the opportunity presented itself for them to be raised below, and that opportunity was not seized.” Roberts v. Yang, 2010 Ark. 55, ––– S.W.3d ––––, 2010 WL 398641.

As a threshold matter, we address a prior holding by this court in Jones v. Abraham, in which we held that the requirement for a contemporaneous objection was not applicable to deny appellate review of a dismissal. The Jones case involved a contest to a will by parties claiming that the decedent made an oral agreement to transfer her share of her father's estate to her sister, and her sister's heirs. The lower court granted a motion for a directed verdict. Originally, the matter was appealed to the court of appeals, which affirmed, citing to the “contemporaneous-objection rule” as a ground for denying appellate review of the court's order of dismissal. See Jones v. Abraham, 67 Ark.App. 304, 999 S.W.2d 698 (1999). On granting petition for review, this court stated that the court of appeals decision was in conflict with Morrow v. Morrow, 270 Ark. 31, 603 S.W.2d 431 (Ark.App.1980). In Morrow, the appellee claimed that the appellant failed to raise an issue at trial and, thus, the court of appeals could not consider it on appeal. The court of appeals rejected the appellee's assertion and stated that “[t]raditionally appeals from the chancery court are reviewed de novo and there is no requirement of objections to the findings, conclusions and decree of the court to obtain review on appeal.” Id. at 33, 603 S.W.2d at 432. The Jones court cited to this decision in holding that the lack of a contemporaneous objection did not deny appellate review of the case. The Morrow opinion, however, did not cite to any authority to support its conclusion.

The Jones decision has been cited in other cases. See, e.g., Abernathy v. Adous, 85 Ark.App. 242, 149 S.W.3d 884 (2004); Martin v. Martin, 79 Ark.App. 309, 87 S.W.3d 817 (2002). In Dansby v. Dansby, 87 Ark.App. 156, 189 S.W.3d 473 (2004), the court of appeals cited the contemporaneous-objection rule in refusing to address an argument on appeal and stated, “[W]e do not consider an issue on appeal, even of constitutional concern, that has not been first raised to the trial court for resolution.” Id. at 164, 189 S.W.3d at 479. The dissent, however, relied on the holdings of Jones and Morrow to support the claim that there was no such requirement for contemporaneous objections.

In this case, the Morrow decision is inconsistent with our jurisprudence regarding contemporaneous objections. In Jones v. Jones, 320 Ark. 449, 898 S.W.2d 23 (1995), a case decided after Morrow, we once again held that “ de novo review does not mean that this court can entertain new issues on appeal when the opportunity presented itself for them to be raised below, and that opportunity was not seized.” Id. at 453, 898 S.W.2d at 25. We reiterated this principle in Roberts v. Yang, in which we stated that “it is incumbent upon the parties to raise arguments initially to the circuit court and to give that court an opportunity to consider them.... Otherwise, we would be placed in the position of reversing a circuit court for reasons not addressed by that court.” Roberts, 2010 Ark. 55, at 6, ––– S.W.3d at ––––, 2010 WL 398641.

We have previously addressed the issue of contemporaneous objections and the lack of harmony in what were then categorized as chancery cases. In Umberger v. Westmoreland, 218 Ark. 632, 238 S.W.2d 495 (1951), this court directly addressed the “lack of harmony” among chancery cases regarding the necessity of making timely objections at the trial court. In Umberger, we noted that the requirement of contemporaneous objections in criminal and probate cases applied to chancery cases as well and stated the rationale for this principle as follows:

It is much fairer to litigants, as well as to trial judges in probate and equity cases, that they should know, when the case is decided in the trial court, what evidence is to be considered on appeal. Unless a timely objection be made by the litigants in the trial court, then the trial judge can be trapped into deciding a case on evidence that may later be held inadmissible, when objected to for the first time on appeal.... Therefore, we unanimously hold that in cases hereafter tried, all objections to evidence and witnesses must be made in a timely manner in the trial court, and if not so...