stating that “a contemporaneous objection is required in order to preserve an issue for appeal”
How later courts described this case
- stating that “a contemporaneous objection is required in order to preserve an issue for appeal”
Written by the judges who cited it.
The opinion
Cite as 2014 Ark. 471
SUPREME COURT OF ARKANSAS
No. CV-14-612
TONIA INGLE Opinion Delivered November 13, 2014
APPELLANT
APPEAL FROM THE WASHINGTON
V. COUNTY CIRCUIT COURT
[NO. JV12-387-3]
ARKANSAS DEPARTMENT OF HONORABLE STACEY
HUMAN SERVICES ZIMMERMAN, JUDGE
APPELLEE
AFFIRMED.
COURTNEY HUDSON GOODSON, Associate Justice
Appellant Tonia Ingle appeals the order entered by the Washington County Circuit
Court awarding permanent custody of her son C.N. to his father, Jason Neal. For reversal,
Ingle contends that the circuit court failed to abide by this court’s mandate issued in the
previous appeal; that the proceedings were not conducted in accordance with the Arkansas
Juvenile Code; and that the circuit court’s decision is not supported by the evidence. Our
jurisdiction is pursuant to Arkansas Supreme Court Rule 1–2(a)(7), as this is a second or
subsequent appeal following an appeal that has been decided by this court. We affirm the
circuit court’s decision.
The record reflects that this case began in May 2012 when appellee, the Arkansas
Department of Human Services (DHS), obtained an emergency order for custody of C.N.
upon Ingle’s arrest on drug-related charges. At the probable-cause hearing, the circuit court
Cite as 2014 Ark. 471
placed C.N. in Neal’s temporary custody. The circuit court subsequently declared that C.N.
was dependent-neglected, and the court continued the placement of the child in Neal’s
custody. At the six-month review hearing, the circuit court abruptly awarded Neal
permanent custody of C.N. and closed the case. Ingle appealed to the court of appeals, which
affirmed the circuit court’s decision. Ingle v. Ark. Dep’t of Human Servs., 2013 Ark. App. 418.
This court accepted Ingle’s petition for review, and we reversed and remanded, directing the
circuit court to return C.N. to Ingle’s custody. Ingle v. Ark. Dep’t of Human Servs., 2014 Ark.
53, 431 S.W.3d 303. In so holding, we stated the following:
Of course, this court cannot know what has transpired since the circuit court
entered its order vesting custody in Neal. If facts have developed during the
pendency of the appeal that would cause serious concern about returning C.N.
to Ingle’s care, any party may file a petition requesting the circuit court to
address those matters.
Id. at 9, 431 S.W.3d at 308.
The clerk of this court issued the mandate on February 19, 2014. On February 28,
2014, DHS filed a petition requesting an emergency hearing. In reference to the above-
quoted language from this court’s opinion in Ingle, DHS asserted that issues of grave concern
had arisen during the pendency of the appeal. Specifically, DHS alleged that Ingle had been
charged with six felony offenses and that she had given notice that she was asserting the
defense of mental disease or defect to those charges. The circuit court set a hearing for March
12, 2014, but the court entered an order continuing the matter until April 16, 2014, due to
DHS’s inability to locate Neal.
At the hearing, DHS presented the testimony of Nirika Morris, the Washington
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County supervisor for the Department of Children and Family Services. Morris had recently
visited Neal’s home, and she testified that it was clean and appropriate for C.N.’s needs. She
had observed C.N. at play in his bedroom and said that C.N. appeared to be comfortable and
at home in Neal’s care. Morris also stated that C.N. interacted well with the other children
in the home and that C.N. was particularly close to his stepbrother. Morris testified that
Ingle’s visitation with C.N. had been infrequent and irregular since the last custody order.
She said that Ingle had given birth to a son during the pendency of the case and that Ingle no
longer had custody of that child. Morris expressed concerns about C.N.’s health and safety
should he be returned to Ingle’s custody. She recommended that C.N. remain in Neal’s care.
DHS also introduced into evidence the felony informations charging Ingle with
possession of a controlled substance (hydrocodone), filed on April 4, 2013; possession of a
controlled substance (methamphetamine), possession of drug paraphernalia (glass pipe), and
aggravated robbery (based on the allegation that Ingle brandished a BB gun in order to steal
a wallet), filed on June 13, 2013; and possession of a controlled substance (methamphetamine),
and furnishing a prohibited article into a correctional facility (methamphetamine), filed on
February 21, 2013. The circuit court also allowed the admission of an “Order for Fitness to
Proceed,” suspending the criminal proceedings regarding the charges filed on April 4 and June
13, 2013, because Ingle had given notice that she intended to assert the defense of mental
disease or defect. DHS also introduced an order setting those charges for trial on April 28,
2014.
Neal also testified at the hearing. He stated that C.N. had been living with him for
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almost two years and that the child had adjusted well to the arrangement. Neal said that, in
addition to C.N., his household included his wife, their one-year-old daughter, and his wife’s
son, who was roughly the same age as C.N. He testified that the boys were best friends.
Neal further testified that substantial time periods would pass when he did not hear from Ingle
and that she had exercised visitation with C.N. only five times in the past eighteen months.
Neal stated that his desire was for C.N. to remain in his custody. He said that he had
concerns about Ingle with regard to her lifestyle, which included drugs and “partying.”
In her testimony, Ingle stated that there were no serious concerns about C.N. being
returned to her custody. She testified that she worked full-time as a supervisor and that she
was involved in her church. Ingle denied that she used drugs and said that she had passed a
drug test at the March 12, 2013 hearing that had been continued. She acknowledged that she
had visited C.N. only five or six times since November 2012. Ingle stated, however, that
Neal did not always respond to her text messages, that his phone was sometimes turned off,
and that he had no voice mail. She also said that Neal had moved without her knowledge.
As another reason for not exercising visitation, Ingle testified that, due to his advanced age,
her father could no longer supervise visitation with C.N., as ordered by the circuit court. She
also stated that she frequently visited her other son, who had been placed in foster care after
her arrest on the aggravated-robbery charge.
In addition, Ingle testified that the charges pending against her were being dismissed.
She maintained that one possession-of-methamphetamine charge was false because the
substance the officers discovered was acrylic and not methamphetamine. With regard to the
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other charge of possession of methamphetamine and furnishing a prohibited article, Ingle
claimed that the substance was placed in her belongings by another inmate in the jail. She
also denied that she robbed anyone.
In its ruling from the bench, the circuit court expressed serious concerns about placing
C.N. in Ingle’s custody. The court found that Ingle had been arrested twice in the past year.
The court also considered the serious charges pending against Ingle and the fact that she was
asserting the defense of mental disease or defect. The circuit court also noted that Ingle’s
other child had been removed from her custody following her arrest. The court found that
placing C.N. in Ingle’s care was not safe and would put the child in harm’s way and that it
would be detrimental to the child to remove him from Neal’s home where he was doing well.
The circuit court incorporated its findings in an order dated April 18, 2014, and an amended
order entered on April 28, 2014. This timely appeal followed.
Ingle’s first argument for reversal is that the circuit court violated the mandate of this
court issued in the prior appeal. She contends that the mandate required the immediate
return of C.N. to her custody and that the circuit court exceeded its authority by entertaining
DHS’s petition and conducting the hearing. DHS responds that the circuit court’s actions
were appropriate and complied with this court’s directives because our instructions on remand
invited the filing of a petition to address serious concerns before custody was returned to
Ingle.
The mandate is the official notice of action of the appellate court, directed to the court
below, advising that court of the action taken by the appellate court, and directing the lower
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court to have the appellate court’s judgment duly recognized, obeyed, and executed. Johnson
v. Cincinnati Ins. Co., 375 Ark. 164, 289 S.W.3d 407 (2008). We have long held that the
inferior court, upon remand, must execute the mandate. Wal-Mart Stores, Inc. v. Regions Bank
Trust Dep’t, 356 Ark. 494, 156 S.W.3d 249 (2004). Under the mandate rule, “an inferior
court has no power or authority to deviate from the mandate issued by an appellate court.”
Dolphin v. Wilson, 335 Ark. 113, 118, 983 S.W.2d 113, 115 (1998). Thus, a lower court is
bound by the judgment or decree of a higher court as law of the case and must carry the
decision of the higher court into execution pursuant to the mandate issued by that court.
Pro-Comp Mgmt., Inc. v. R.K. Enters., LLC, 366 Ark. 463, 237 S.W.3d 20 (2006). The lower
court may not vary the decision or judicially examine it for any purpose other than execution.
Smith v. AJ & K Operating Co., 365 Ark. 229, 227 S.W.3d 899 (2006).
We have also observed that the “lower court is vested with jurisdiction only to the
extent conferred by the appellate court’s opinion and mandate.” City of Dover v. Barton, 342
Ark. 521, 525, 29 S.W.3d 698, 700 (2000) (quoting Dolphin, 335 Ark. at 118, 983 S.W.2d
at 115). Therefore, the question of whether the lower court followed the mandate is not
simply one of whether the lower court was correct in its construction of the case, but also
involves a question of the lower court’s jurisdiction. Id. at 118-19, 983 S.W.2d at 115.
Similarly, when a case is remanded for a specific act, the entire case is not reopened, but rather
the lower tribunal is only authorized to carry out the appellate court’s mandate, and the trial
court may be powerless to undertake any proceedings beyond those specified. Id. If an
appellate court remands with specific instructions, those instructions must be followed exactly,
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to ensure that the lower court’s decision is in accord with that of the appellate court. Id.
In the previous appeal, this court found fault with the circuit court’s decision to grant
permanent custody to Neal. In the opinion, we reversed the circuit court’s decision and
remanded with a qualified instruction for the court to return custody of the child to Ingle.
This directive was qualified in that the opinion included the caveat that any party was
authorized to file a petition to alert the circuit court of any “serious concerns” that should be
addressed before returning the child to Ingle’s custody. Therefore, when this court issued the
mandate and remanded the case, the circuit court was vested with jurisdiction to either enter
an order placing custody of the child with Ingle or to entertain a petition to address matters
of serious concern that had occurred during the pendency of the appeal. Clearly, we gave the
circuit court leave to evaluate the return of the child to Ingle’s custody based on events that
transpired during the appeal. Pursuant to this qualification, DHS filed such a petition, and the
circuit court addressed those matters at the hearing. In our view, the circuit court followed
both the letter and the spirit of the mandate on remand. Therefore, we find no merit in
Ingle’s contention that the circuit court violated the mandate of this court on remand.
Ingle’s next argument on appeal is that the proceedings were not conducted in
accordance with the juvenile code. This point is built on her first argument that the circuit
court was only authorized by the mandate to place the child in her care. Ingle insists that,
once C.N. was returned to her custody as required by the mandate, the only manner by
which DHS could have removed C.N. from her home would have been for it to initiate an
entirely new case by filing an emergency petition and establishing probable cause that C.N.
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was dependent-neglected and in immediate danger of harm. She contends that the circuit
court failed to implement the proper procedures under the code. In response, DHS asserts
that Ingle failed to preserve this argument for appeal because it was not raised in the circuit
court.
Our review of the record confirms DHS’s contention. At no point in the proceedings
below did Ingle argue that DHS was required to initiate a new petition and to establish
probable cause for the child’s immediate removal from her custody. As we stated in the first
appeal of this matter, “a contemporaneous objection is required in order to preserve an issue
for appeal.” Ingle, 2014 Ark. 53, at 7, 431 S.W.3d at 307. Because this issue is being raised
for the first time on appeal, we do not address it.
As her final point on appeal, Ingle asserts that the circuit court’s findings are not
supported by the evidence. DHS responds that the evidence demonstrates that there were
serious concerns about returning the child to Ingle’s custody. This court reviews findings in
dependency-neglect proceedings de novo, but we will not reverse the trial court’s findings
unless they are clearly erroneous. Contreras v. Ark. Dep’t of Human Servs., 2014 Ark. 51, 431
S.W.3d 297. A finding is clearly erroneous when the reviewing court, on the entire evidence,
is left with a definite and firm conviction that a mistake has been made. Young v. Ark. Dep’t
of Human Servs., 2012 Ark. 334. This court does give a high deference to the circuit court
because that court is in a far superior position to observe the parties before it and to judge the
credibility of the witnesses. Seago v. Ark. Dep’t of Human Servs., 2011 Ark. 184, 380 S.W.3d
894.
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In this case, the circuit court heard testimony that Ingle had been arrested twice since
the entry of the last order, which had resulted in the removal of another child from her
custody. She was facing a multitude of criminal charges and had asserted the defense of
mental disease or defect. Although Ingle maintained that she was not guilty of any offense,
the circuit court was not required to believe her testimony. Ingle also claimed that the
charges against her were to be dismissed. However, she offered no proof to support that
assertion, which again the circuit court was not obliged to accept. By her own admission,
Ingle had seen C.N. only a handful of times in the past eighteen months. Otherwise, there
was testimony that C.N. was faring well in Neal’s custody and that he was bonded to his half-
sibling and stepbrother. On this record, we are not able to say that the circuit court’s decision
is clearly erroneous.
Affirmed.
HART, J., concurs.
HANNAH, C.J., and CORBIN and DANIELSON, JJ., dissent.
JOSEPHINE LINKER HART, Justice, concurring. I write separately in response to
the dissent. Apparently the sole premise on which the dissent is based is that the circuit court
lacked subject-matter jurisdiction to entertain the current petition filed by ADHS following
our opinion in Ingle I reversing and remanding the circuit court’s decision to award permanent
custody to Neal, the putative father, and close the dependency-neglect case. However, this
dissent’s focus on jurisdiction reveals a misunderstanding of the ongoing nature of
dependency-neglect proceedings.
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In Ingle I, we did not direct the circuit court to close the dependency-neglect case.
The circuit court had clearly erred in closing the case in contravention of the dictates of the
juvenile code. While Ingle had been compliant with the case plan, she had not completed
all of the requirements, which indicated that further court supervision was necessary.
We held that, “we are left with a definite and firm conviction that a mistake was
committed when the circuit court found that it was in C.N.’s best interest to be placed in the
permanent custody of Neal.” Thus, our opinion not only reversed the order granting custody
to Neal but reversed the order closing the case. Clearly, we did not direct the circuit court
to close the dependency neglect proceedings. In fact, we anticipated that the case would
continue in accordance with the juvenile code and said specifically that, “[i]f facts have
developed during the pendency of the appeal that would cause serious concern about
returning C.N. to Ingle’s care, any party may file a petition requesting the circuit court to
address those matters.”
In Ingle I we noted:
Ingle first argues on appeal that the circuit court’s disposition of halting
reunification services, placing C.N. in Neal’s permanent custody, and closing the case
at the six-month review hearing is not authorized under the juvenile code. DHS and
C.N.’s ad litem have filed a joint brief, and they concur with Ingle’s overall contention
that the circuit court failed to adhere to the requirements of the applicable statutes
before granting permanent custody and ceasing reunification services, particularly
when the circuit court halted services without notice, which they contend is required
by Arkansas Code Annotated section 9-27-365 (Repl. 2009).
Unfortunately, we are not able to resolve this issue because it is being raised for
the first time on appeal.
Here, once again, compliance with the juvenile code by the circuit court in granting
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custody to Neal and closing the case was not argued below. Thus, once again we are
precluded from reaching the issue. However, for the dissent to suggest that our previous
opinion and mandate directed the circuit court to act outside of the authority of the juvenile
code and close the case is absurd. Moreover, for the dissent to say that reversing the order
which closed the case in Ingle I deprived the circuit court of jurisdiction to continue the
dependency neglect proceedings has no foundation. See Ark. Code Ann. § 9-27-355.
The dissent attempts to rewrite Ingle I, to state that we directed the circuit court to
close the dependency neglect case. However, that we did not and could not do, as this
court—like the circuit court—has no authority to ignore the juvenile code.
DONALD L. CORBIN, Justice, dissenting. The question of whether the circuit court
acted in excess of its authority becomes a matter of subject-matter jurisdiction and may be
raised sua sponte. Cincinnati Ins. Co. v. Johnson, 367 Ark. 468, 241 S.W.3d 264 (2006). In
our unvarying application of the rule, we have stated that subject-matter jurisdiction is always
open, cannot be waived, can be questioned for the first time on appeal, and can even be raised
by this court. Id. Because the circuit court did not properly have subject-matter jurisdiction
of this case, I respectfully dissent.
In Ingle v. Arkansas Department of Human Services, 2014 Ark. 53, 431 S.W.3d 303, Chief
Justice Hannah and I joined Justice Danielson’s concurrence in part and dissent in part because
the case focused primarily on an uncertain and potentially dangerous set of circumstances
surrounding the minor, C.N., between November 2012, when the circuit court awarded
custody, and February 6, 2014, the date of this court’s opinion. Justice Danielson illuminated
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this concern by stating that
the instant case is one of dependency-neglect, which is exceedingly different from the
ordinary case in equity. Even if the record could be considered fully developed in the
instant case, the record before us most certainly concludes with the circuit court’s 2012
order, and there is absolutely no way of knowing what has transpired in these people’s
lives since that time. . . . Nonetheless, it is C.N.’s best interest that is the polestar
consideration, and I, for one, think the more responsible course and prudent
disposition would be for this court to reverse and remand, such that further
proceedings in the matter could be had.
Ingle, 2014 Ark. 53, at 10–11, 431 S.W.3d at 309.
The majority in Ingle, in an unprecedented break from authority, qualified the
disposition of the case as follows:
Accordingly, we reverse the circuit court’s order and remand with directions for the court to
return custody of C.N. to Ingle. Of course, this court cannot know what has transpired
since the circuit court entered its order vesting custody in Neal. If facts have
developed during the pendency of the appeal that would cause serious concern about
returning C.N. to Ingle’s care, any party may file a petition requesting the circuit court
to address those matters.
Ingle, 2014 Ark. 53, at 9, 431 S.W.3d at 308 (emphasis added). On February 19, 2014, this
court issued its mandate, and the mandate was filed in the Washington County Circuit Court
on February 21, 2014. When the mandate was filed in the circuit court, this court lost
jurisdiction to the circuit court. Brimson v. Brimson, 228 Ark. 562, 309 S.W.2d 29 (1958).
The Washington County Circuit Court, at that point in the case, was in the untenable
position of following the majority’s qualified disposition and the directive of the mandate “to
return custody of C.N. to Ingle,” who, as the facts in the record reveal, had been released
from jail on a $10,000 bond and faced six felony charges in the Washington County Circuit
Court, including aggravated robbery, a Y felony. The majority now claims that
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[t]his directive was qualified in that the opinion included the caveat that any party was
authorized to file a petition to alert the circuit court of any “serious concerns” that
should be addressed before returning the child to Ingle’s custody. Therefore, when
this court issued the mandate and remanded the case, the circuit court was vested with
jurisdiction to either enter an order placing custody of the child with Ingle or to
entertain a petition to address matters of serious concern that had occurred during the
pendency of the appeal.
Here, the majority is sorely mistaken in its reasoning because its qualified disposition
gave unprecedented authority to the parties in the case—not to the Washington County
Circuit Court. It is axiomatic that the lower court is bound by the judgment or decree of a
higher court as law of the case and must carry the decision of the higher court into execution
pursuant to the mandate issued by that court. Pro-Comp Mgmt., Inc. v. R.K. Enters., LLC, 366
Ark. 463, 237 S.W.3d 20 (2006). We have made it very clear that “[d]irections by an
appellate court to the trial court as expressed by the opinion and the mandate must be
followed exactly and placed into execution.” Smith v. AJ & K Operating Co., 365 Ark. 229,
233, 227 S.W.3d 899, 902 (2006) (quoting Wal-Mart Stores, Inc. v. Regions Bank Trust Dep’t,
356 Ark. 494, 499, 156 S.W.3d 249, 253 (2004)). Thus, the majority’s sole directive to the
circuit court was to return custody of the minor child to Ingle, who recently had been
released from prison, without a hearing upon remand to determine the child’s best interest.
As an appellate court, we do not also give directives to or address the parties upon remand.
Because of the majority’s erroneous qualified disposition in Ingle, the circuit court was
without subject-matter jurisdiction to entertain DHS’s petition for emergency hearing. After
the mandate was filed in the Washington County Circuit Court on February 21, 2014, DHS
filed a petition for emergency hearing under the same docket number, CV-13-570, as the
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previous case appealed to this court. On February 28, 2014, the circuit court entered an order
setting an emergency hearing in the case, noting it was “Remanded by [the] Arkansas
Supreme Court” in “Case CV-13-570.” Here, the circuit court erred because, cognizant of
our limited directive to return custody to Ingle, it should have dismissed DHS’s petition for
lack of subject-matter jurisdiction. Instead, the circuit court exceeded its jurisdiction by
entertaining DHS’s petition for emergency hearing docketed under the same case number.
Additionally, DHS could have retained custody of C.N. with Neal while it opened a new
dependency-neglect case by filing a new petition for emergency custody, with a new docket
number, seeking an emergency removal of custody from Ingle because of her six felony
charges. See Ark. Code Ann. § 9-27-310 (Repl. 2009).
While I am sympathetic to the circuit court and DHS because of the predicament that
resulted from the majority’s qualified disposition in the prior appeal, I cannot ignore the plain
fact that the circuit court acted wholly without jurisdiction. When the circuit court lacks
jurisdiction, the appellate court also lacks jurisdiction. See Clark v. State, 362 Ark. 545, 210
S.W.3d 59 (2005) (citing Priest v. Polk, 322 Ark. 673, 912 S.W.2d 902 (1995)). For these
reasons, I would dismiss the appeal for lack of subject-matter jurisdiction.
HANNAH, C.J., and DANIELSON, J., join in this dissent.
Leah Lanford, Arkansas Public Defender Commission, for appellant.
Tabitha Baertels McNulty, Office of Policy and Legal Services; and Chrestman Group,
PLLC, by: Keith Chrestman, for appellees.
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