ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
 

DIVISION I

CA03-419

October 29, 2003

ARKANSAS DEPARTMENT AN APPEAL FROM JEFFERSON

OF HUMAN SERVICES COUNTY CIRCUIT COURT

APPELLANT [Nos. J00-262-4 and J99-342-4]

V. HON. THOMAS BROWN, JUDGE

GEORGIANA DARROUGH REVERSED

APPELLEE

Wendell L. Griffen, Judge

This case arises from a review order of the Circuit Court of Jefferson County, finding that the Arkansas Department of Human Services (ADHS) failed to make reasonable efforts to prevent removal of four juveniles from the custodian and vesting custody over the juveniles in the ADHS. On appeal, the ADHS argues that (1) the trial court erred when it ruled that "cash assistance" by the ADHS does not constitute a family service when court-ordered, and that (2) the trial court erred in finding that the ADHS made no reasonable efforts to prevent removal from the custodian. We reverse.

Upon the initiative of ADHS, Gustavia Reed was given custody of four of her nephews in March 2001. The mother of the four juveniles, Georgiana Darrough, had previously neglected and then abandoned them. The goal then was continued custody with Reed. According to Sandra Hawkins, a caseworker from ADHS, Gustavia Reed began to complain about money problems early in her tenure as custodian of the four juveniles, as early as May2001.1 In October 2001, upon the request of Gustavia Reed, the ADHS had a psychological evaluation performed.

On December 19, 2001, the trial court ordered the ADHS to provide Reed either with a clothing voucher or direct financial assistance of $200 per month, as well as either food stamps or a direct financial assistance of $250 per month. From these options, the ADHS chose to render direct financial assistance. On April 17, 2002, the trial court ordered the ADHS to increase the financial assistance payments to Gustavia Reed to a total amount of $650 for the months of May and June each and ordered Reed to provide the court with a financial affidavit at the next scheduled hearing on June 26, 2002. This increase was also reflected in a review order filed on May 9, 2002.

On April 24, 2002, it appears that the trial court made a finding that the ADHS failed in making reasonable efforts to assist Gustavia Reed.2 The record reflects that thereafter caseworker Hawkins repeatedly visited the Reed home. On May 2, 2002, Hawkins went to the Reed residence, but Gustavia Reed was not present. Hawkins spoke with Mr. Reed about the juveniles. On May 14, 2002, Hawkins telephoned Mr. Reed to see if someone would be home for a visit. On June 10, 2002, Hawkins spoke with Gustavia Reed-from that conversation, Hawkins would later recall that Reed had been curt with her and that Reed had stated that she was going to return the juveniles to ADHS custody. On June 17, 2002, Hawkins again called Reed to check whether Reed had received a notice of a staffing meeting in the mail. Reed explained that she had not retrieved her mail, that she did not know of the notice, and that she would not attend anyway. On June 19, 2002, Hawkins again visited the Reed residence. Gustavia Reed was not present, or asleep, and Mr. Reed briefly spoke with Hawkins. On June 21, 2002, Hawkins visited the Reed residence for a last time. She also called Reed about the case plan. On June 24, 2002, Hawkins again called Reed to see how things were going and to see whether Reed had changed her mind about custody. Hawkins testified during the review hearing that up to June 24, 2002, Reed had not requested any other services from ADHS.

On June 26, 2002, the trial court conducted another review hearing. During that hearing, the trial court stated that the ADHS had made reasonable efforts to provide services. Gustavia Reed expressed her desire to return the juveniles to ADHS custody. On July 31, 2002, the trial court filed its review order concerning the June 26, 2002 hearing. In that order, the trial court returned custody to the ADHS and reiterated that the ADHS had made reasonable efforts to provide services. However, the trial court reserved for another hearing the issue of whether the ADHS had made reasonable efforts to prevent removal of the juveniles from Reed.

In the wake of the June 26, 2002 hearing, the ADHS assumed emergency custody over the juveniles. On August 7, 2002, the trial court conducted a hearing on the specific issue of whether the ADHS had made reasonable efforts to prevent removal of the juveniles. The trial court limited its review to the particular time frame from April 24, 2002, to June 26, 2002. In an order filed August 22, 2002, the trial court found that the ADHS had not made reasonable efforts to prevent removal during the months of April, May, and June of 2002. Specifically, the trial court stated that cash assistance did not constitute family service because cash assistance was court-ordered. The August 22, 2002 order also reiterated that custody of the juveniles lay with the ADHS and that the goal of the case was now permanency with the ADHS. The ADHS filed a motion to reconsider on August 30, 2002. The trial court apparently never ruled on that motion. On October 23, 2002, the ADHS filed its timely notice of appeal.3

Court-Ordered "Cash Assistance" As Family Service

For its first point of error, the ADHS argues that the trial court erred when it stated that "cash assistance" does not constitute family service when it is court-ordered. In equity matters, the standard of review on appeal is de novo, but we do not reverse the trial judge's findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Wade v. Arkansas 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 on the entire evidence is left with a definite and firm conviction that a mistake has been committed. Id. However, we give no deference to a trial court's conclusions on a question of law. Kelly v. Kelly, 341 Ark. 596, 19 S.W.3d 1 (2000).

Arkansas Code Annotated section 9-27-328(a) (Supp. 2003) provides that a trial court "shall order family services appropriate to prevent removal" before it can order any dependent-neglected juvenile in need of services removed from the custody of a parent, guardian, or custodian, absent any circumstances warranting immediate removal for the protection of the juvenile. Family services are defined in Ark. Code Ann. 9-27-303(24)(A) (Supp. 2003) as such "relevant services provided to a juvenile or his or her family, including, but not limited to":

(i) Child care;

(ii) Homemaker services;

(iii) Crisis counseling;

(iv) Cash assistance;

(v) Transportation;

(vi) Family therapy;

(vii) Physical, psychiatric, or psychological evaluation;

(viii) Counseling; or

(ix) Treatment.

Ark. Code Ann. § 9-27-303(24)(A)(i)-(ix) (Supp. 2003). Our supreme court has stated that court-ordered services, such as transportation and financial assistance, are among those included in the definition of family services. See, e.g., Arkansas Dep't of Human Servs. v. Clark, 304 Ark. 403, 802 S.W.2d 461 (1991).

As such, it is difficult to understand why cash assistance should not constitute family services merely because it was court-ordered. Appellee in this case now argues that the trial court was correct in so finding because the trial court made a specific finding that the cash assistance was not a service which went to the issue of preventing the juveniles from being removed from the custodial home. However, the reasonableness of the efforts to prevent removal from the home and the question of whether court-ordered cash assistance constitutes family service under Arkansas law are two different issues. In fact, the August 22, 2002 court order reflects that distinction quite well. Under paragraph 6 of its findings, the trial court stated that the ADHS had not made reasonable efforts to prevent removal, "specifically the Department has only provided cash assistance and worker visits." Under paragraph 7, and thus quite distinctly, the trial court found that "because the cash assistance was court ordered, the assistance did not constitute a service."

We hold that court-ordered cash assistance constitutes family services. Our code reflects the legislative intent that a court may-indeed, must in removal cases-order certain family services. The statutes do not support the thesis that cash assistance, if ordered by the court, somehow fails to constitute family services. Cash assistance is specifically listed by the Code as one possible family service. Statutory and case law demonstrate that the mere fact it is court-ordered does not prevent cash assistance from constituting an appropriate family service necessary to prevent removal. Thus, we reverse the trial court's finding that court-ordered cash assistance does not constitute family services.

Finding of No Reasonable Efforts to Prevent Removal from Custodian

The ADHS next argues that the trial court erred in finding that the ADHS failed to make reasonable efforts to prevent removal of the juveniles from Gustavia Reed. Based on ourclearly-erroneous standard of review, Wade v. Arkansas Dep't of Human Servs., supra, we must consequently determine whether the trial court clearly erred in finding that the ADHS failed to make reasonable efforts to prevent removal of the juveniles. In order to do so, it follows that we must determine what constitutes reasonable efforts to prevent removal of juveniles. Therefore, we must consider the specific context in which the ADHS operated in this case, reasonably or unreasonably. In this case, the record shows that Gustavia Reed was a relative-placement custodian who repeatedly stated that she wished to return custody over the juveniles to ADHS, albeit because she expressed dissatisfaction with the ADHS treatment of her. The question before us, then, becomes what is reasonable about preventing the removal of juveniles from a custodian who adamantly communicates her intention to surrender custody.

Upon review of the available record, we hold that the trial court's findings are clearly erroneous. The trial court found that the ADHS failed to make reasonable efforts to prevent removal of the juveniles. Even if we limit our review to the time frame at issue in the court below, the months of April, May, and June of 2002, we find that the ADHS made reasonable efforts to prevent removal in the face of a consistent manifestation of intent to give up custody over the juveniles. ADHS provided cash assistance as ordered and, through case worker Hawkins, attempted to contact Gustavia Reed repeatedly to (1) ask about the children, (2) see whether Reed changed her opinion about custody, and (3) get in touch with Reed concerning whether she had received notice of a staffing meeting and a case plan.

We particularly note that Reed failed to request further family services and rejected participation in staffing meetings and case plan discussions. From the record, we cannot determine what else the ADHS was supposed to do, when Reed persistently declared that she was about to give up custody and essentially withheld her cooperation on such custody matters as staff meetings and case plans. As stated above, there are a number of possible family services that ADHS could generally employ in similar cases, and which a court could order to prevent removal. See Ark. Code Ann. § 9-27-303(24)(A) (Supp. 2003). However, if further services are not requested and if the ADHS is essentially hindered in assessing the potential need for further services-as they might have been assessed during staff meetings and case plan discussions-we cannot now say that the ADHS failed to make reasonable efforts to prevent removal. Thus, we find the trial court's determination clearly erroneous.

Reverse.

Pittman, J., agrees.

Hart, J., concurs.

1 In the beginning, five juveniles were in the custody of Gustavia Reed. One, however, returned to ADHS foster care because of behavioral problems in July 2001.

2 On May 17, 2002, the ADHS filed a motion to reconsider regarding the April 24, 2002 trial court finding of no reasonable efforts. The trial court denied that order on June 19, 2002.

3 Pursuant to Ark R. App. P.-Civ. 4(b)(1) (2003), the notice of appeal is timely because it occurred thirty days after the date upon which the ADHS's motion to reconsider was deemed denied in the absence of the trial court's specific ruling on the matter, which would have been September 30, 2002.