The opinion
R AY THORNTON, Justice. I respectfully dissent on the issue of whether DHS is immune from this lawsuit under the protection of the doctrine of sovereign immunity. As a state agency, DHS is afforded the protection of sovereign immunity, a defense that arises from Article 5, Section 20, of the Arkansas Constitution, which provides: “The State of Arkansas shall never be made a defendant in any of her courts.” Sovereign immunity may only be waived in limited circumstances, and this court has recognized only two ways that a claim of sovereign immunity may be defeated: (1) where the state is the moving party seeking specific relief; and (2) where an act of the legislature has created a specific waiver of immunity. Short v. Westark Community College, 347 Ark. 497 , 65 S.W.3d 440 (2002); State Office of Child Support Enforcem’t v. Mitchell, 330 Ark. 338 , 954 S.W.2d 907 (1997). Furthermore, sovereign immunity is jurisdictional immunity from suit that may be waived by consent. State v. Goss, 344 Ark. 523 , 42 S.W.3d 440 (2001). In the present case, neither exception applies. The trial court failed to recognize that the state did not waive sovereign immunity, nor did DHS consent. When the trial court ordered DHS to pay the Brown Schools’s bill, it violated the doctrine of sovereign immunity.
The Juvenile Code gives the court the power to order DHS to provide funds for family services, but the legislature specifically limited waiver of the state’s sovereign immunity with respect to any payment for out of state placement. Clear statutory language contained in Ark. Code Ann. § 20-46-106 subsections (a)(2) and (b)(1)—(10). Ark. Code Ann. § 20-46-106 (a) provides as follows:
(2) Prior to making an out-of-state placement, the Department of Humans Services shall make and document the determinations established in subsection (b) of this section. If an out of state placement is made without documenting such determinations, payment for services shall not be authorized.
[Emphasis added.] In the case under consideration, the Department of Human Services did not make the required determinations. There was a complete failure to follow the mandatory directions required by Ark. Code Ann. § 20-46-106 (b), which reads as follows:
Before an emotionally disturbed youth is placed in an out-of-state treatment facility, the Department of Human Services shall make and document the following determinations:
(1) Whether the emotionally disturbed youth has been appropriately and accurately diagnosed;
(2) Whether an appropriate treatment facility exists within the state;
(3) Whether there is an appropriate treatment facility in a border state;
(4) Whether the facility being considered has the most appropriate program.
(5) Whether the program requires payment of board, and if so, what is the amount;
(6) Whether the total cost for treatment in the out-of-state facility exceeds the cost for treatment in state;
(7) Where youth residing at the facility attend school, and whether the school is accredited;
(8) What type of professional staff is available at the facility;
(9) What mechanisms are in place to address problems that are not within the purview of the program;
(10) What other considerations exist, in addition to the youth’s emotional problems, such as other medical conditions, travel expenses, wishes of the youth, best interests of the youth, effect of out-of-state placement on the youth, and proximity to the emotional disturbed youth’s family; and
(11) What alternatives exist to out-of-state placement, and the benefits and detriments of each alternative.
The trial court entered its order without requiring DHS to make the statutorily required determinations, and the state’s statutory waiver of sovereign immunity did not occur.
The matter of payment for out-of-state services obtained without complying with Ark. Code Ann. § 20-46-106 should be presented to the claims commission for determination.
Today’s decision awards money damages against the state when there was a specific retention of sovereign immunity, and I respectfully dissent.
I am authorized to state that JJ. BROWN and IMBER join in this dissent.