holding that the General Assembly waived the Department’s sovereign immunity as to providing family services in child-welfare proceedings
How later courts described this case
- holding that the General Assembly waived the Department’s sovereign immunity as to providing family services in child-welfare proceedings
- defining a 'juvenile” as an individual who is from birth to eighteen years of age
- remitting the amount of time to be served from fifty-three days to two
- judges are presumed to be impartial, and the party seeking disqualification has the burden of showing otherwise
Written by the judges who cited it.
The opinion
Robert L. Brown, Justice, concurring in part; dissenting in part. I agree with the majority opinion except for the contempt sanction imposed. The majority affirms sending a mid-level bureaucrat to jail for following DHS policy which conflicted with the trial court’s order. I cannot agree with putting Sandi Doherty in jail under these circumstances. For that reason, I dissent.
This is the first time, according to my research, that this court has jailed an agency employee who was acting under fixed agency policy which she had no authority to supersede. And while I heartily agree that court orders cannot be flouted and must be obeyed subject to sanctions, I seriously question whether the trial court and this court are punishing the right person. Indeed, this whole affair suggests that Ms. Doherty has been made the scapegoat.
DHS policy limited cash assistance paid by the department to cases of child abuse or neglect — children who were “at risk.” Initially, R.P.’s situation fell into neither category. Ms. Doherty did not adopt the policy, but she unquestionably was placed on the horns of a dilemma. Either she followed agency policy or the trial court’s directive to “provide” for the water and electricity. She testified that she believed she was complying with the court’s order by garnering charitable aid from community providers to meet R.P.’s needs. The trial court perceived this to be in direct violation of the original order, and she was sanctioned with 53 days to serve in jail.
My only grievance with the outcome goes to the severity of the sanction under these facts. In Arkansas Dept. of Human Servs. v. Clark, 305 Ark. 561 , 810 S.W.2d 331 (1991), we merely fined “DHS” $250 for the failure of a DHS employee to follow court orders regarding cash assistance for bus fares. Now, we make the quantum leap of jailing a DHS underling who implemented the offending policy and had no authority to contravene it.
In my judgment, the trial court should have followed through on its initial instincts and brought the policymakers of DHS into court, including the Director, who at the time was Tom Dalton. The trial court issued a show-cause order for senior officials on December 4, 1996, but faded to fodow up on it. Only the director and perhaps one or two others could overrule fixed policy. Ms. Doherty could not.
Here, it appears that we are jading a lieutenant for a general’s offense. The majority, no doubt, has simdar qualms, and that is why the jad time for Ms. Doherty has been remitted from 53 days to 2 days. Even with 2 days the stigma and humiliation of being jaded attaches. I think this new get-tough policy toward DHS functionaries could have been enforced just as wed by assessing a meaningful fine against her or, indeed, against DHS itself.
For these reasons, I dissent from that part of the majority opinion sentencing Ms. Doherty to jad.
Arnold, C.J., and Thornton, J., join.