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

2014 Ark. 468

SUPREME COURT OF ARKANSAS No. CV- 14-914

JASMINE FIOLLOWAY Opinion Delivered NOVEMBER 6,2014 APPELLANT MOTION FOR BELATED APPEAL

ARKANSAS DEPARTMENT OF HUMAN SERVICES MOTION GRANTED. APPELLEE

PER CT]RIAM

Appellant,Jasmine Holloway, by and through her attorney,Jeffery Kearney, brings this motion for rule on clerk. Therein, Mr. Kearney admirs fault for failing to timely lodge the record with this court. In reviewing the instant motion, however, it is apparent that Mr. Kcarney failed to tinrely file the notice of appeal fronr the circuit court's order ternrinating

Appellant's parental rights. The termination ordcr was filed on uly 9, 2014, and the original -f

noticc of appeal rvas filed on August 7, 2014, rvith an anrenclcd noticc of appeal filecl on

Scptenrber 5,2014. The instant appeal is govcrncd by Arkansas Strprenrc Cotrrr l\ulc 6-9, atld sttbscction (b)(1) requires the notice of appeal to bc filcd rvithin rwcnty-onc clays

follor,r,ing thc entry of the order tcrnrinatine parcntal righrs. Ark. Sup. Ct. l\. 6-9(b)(1) (2014). Thtts, the notice of appeal in this casc was cluc or.rJtrly 30. 2014, ancl Mr. Kcanrey filcd thc notice o[appeal approxinrately onc rveck aftcr this deadline.

Ilelicf f]or-n the failure to perfect an appeal is provided as part of the appcllate proceclrrre granting the right to an appe al. McDonaltl u. Statc, 356 Ark. 106,146 S.W.3d 883

2014 Ark. 468 (2004). This court has said that there are only two possible reasons for an appeal not being timely perfected: either the party or attorney filing the appeal is at fault, or, there is "good

reason." Id. at 176, 746 S.W.3d at 891. 'We explained as follows: 'Where an appeal is not timely perGcted, either the party or attorney filing the appeal is at fault, or there is good reason that the appeal was not timely perGcted. The party or attorney filing the appeal is therefore faced with two options. First, where the party or attorney filing the appeal is at fault, fault should be admitted by affidavit filed with the motion or in the motion itself There is no advantage in declining to admit fault where fault exists. Second, where the parry or attorney believes that there is good reason the appeal was not perfected, the case for good reason can be made in the motion, and this court will decide whether good reason is present.

Id. at 116, 146 S.W.3d at 891 (footnote omitted). 'While this court no longer requires an affidavit admitting fault before we will considerthe motion, an attorney should candidly admit fault where he has erred and is responsible for the failure to perfect the appeal. McDonald,356 Ark I 06,146 S.W.3d 883. 'When it is plain from the motion, affidavirs, and record that relief

is proper ttnder either rule based on error or good reason, the relief will be srantecl. I(1. If there is attorncy error, a copy of the opinion will be forwardcd to thc Conrnrirree on

Profbssional Conduct. /r/. Although the instant casc is not a crir-ninal nlatter, rve have aflordcd indigcnt parcnts appcaling fronr a tcrmination of parental rights sirrrilar prorections to those affordcd ir"rdiecnt crinrinal defendants by applyingthc McD<tnald standard. Scc Snith u. Ark. Dcp't o-f Haalth €s Huntan \erus.,371 Ark. 425,266 S.W.3d 694 (2007) (per curiam).

Herc, althotrgh the nrotior-r is presented as a nlotion for rule on clerk wherein the attorney acccpts flault for tl-rc failure to timely lodge the record, wc will treat it as a motion for bclated appcal, becattse of the attorney's failure to timely tile rhe norice of appeal.

cv- 14-914

2014 Ark. 468 Motion granted.

cv-11-914