Elizabeth Garner v. Arkansas Department of Human Services

Cite as 2021 Ark. App. 234
Elizabeth Perry
I attest to the accuracy and
ARKANSAS COURT OF APPEALS
integrity of this document DIVISION IV
2023.06.27 11:51:07 -05'00' No. CV-20-695
2023.001.20174
ELIZABETH GARNER Opinion Delivered: May 12, 2021

APPELLANT APPEAL FROM THE SEBASTIAN
COUNTY CIRCUIT COURT, FORT
V. SMITH DISTRICT
[NO. 66FJV-18-427]
ARKANSAS DEPARTMENT OF
HUMAN SERVICES HONORABLE R. GUNNER DELAY,
JUDGE
APPELLEE
REVERSED AND REMANDED

STEPHANIE POTTER BARRETT, Judge

Elizabeth Garner’s parental rights to her daughter, PG, were terminated by the

Sebastian County Circuit Court. After the termination order was entered, Garner filed a

motion for indigency determination, notifying the circuit court of her intention to appeal

the termination decision, stating that the circuit court had previously determined she was

indigent, and requesting that she be determined to be indigent for purposes of appeal. On

November 2, 2020, the circuit court held a hearing on Garner’s motion and determined

that she was not indigent for purposes of appeal. 1 This court ordered the clerk to bifurcate

1
Although Garner was previously determined to be indigent, Ark. Sup. Ct. R. 6-
9(b)(2)(A) requires the appellant to “seek a re-determination of indigency for purposes of
appeal” and requires submission of a new affidavit on which to determine indigency for the
purpose of appeal. The TPR order made the finding, “The Court relieves DeeAnna
Weimar as attorney for Elizabeth Garner after the time for appeal has run should no appeal
be filed.” Weimar filed a notice of appeal. Weimar filed a petition for Garner to proceed
in forma pauperis, which was denied by order of this court on January 6, 2021. Weimar
filed a motion to be relieved as counsel on January 15, 2021; this motion was denied by this
the appeal of the denial of indigency from the appeal of the termination of parental rights.

This is the appeal from the circuit court’s denial of indigency status for purposes of appeal.

On appeal, Garner asserts the circuit court erred (1) in finding she was not indigent for

purposes of appeal; (2) in its application of Mahoney v. Arkansas Department of Human Services,

2019 Ark. App. 453, and (3) in requiring counsel to continue to represent Garner without

payment because it amounts to an unconstitutional taking. Because we find merit in

Garner’s first point, we reverse and remand for a new hearing on the question of Garner’s

indigency.

At the indigency hearing, pursuant to the requirement of Ark. Sup. Ct. R. 6-

9(b)(2)(B) (2020) that the circuit court use the federal poverty guidelines in making its

indigency determination, the circuit court entered an exhibit showing that the 2020 poverty

guideline for a household of one was $12,760. 2 The circuit court also introduced as an

exhibit a transcript of seventy-ones pages from the August 18, 2020 termination hearing

that included Garner’s testimony regarding her income.

Garner testified at the hearing that she was no longer making the $14,700 she

reported making in 2018 at the termination hearing because she was now unemployed and

receiving $528 a month in unemployment benefits. Garner said that she had received

court on January 27, 2021. Arkansas Supreme Court Rule 6-9(b)(2)(C) states, in pertinent
part, “Trial counsel for indigent parents or custodians shall not be relieved as counsel for
purpose of appeal until relieved by the Public Defender Commission as provided in Rule
6-10(c),” which requires trial counsel to serve the Commission with a file-marked copy of
the notice of appeal and the orders being appealed within three business days of filing the
notice of appeal with the circuit clerk.
2
The record is unclear as to the actual number of persons in Garner’s household for
purposes of indigency determination.

2
between $7,000 and $8,000 in August and September 2020 as back pay of her

unemployment benefits, but she had used that money to pay bills and now currently had

only $300 to $400 in her checking account. She admitted that she did not pay rent and

claimed that she spent $128 a month on food.

In determining Garner was not indigent, the circuit court noted that it was directed

to use the federal poverty guidelines in arriving at a decision, and it stated that Garner’s

testimony was inconsistent and lacked credibility. The court specifically found that it did

not believe Garner only had $300 to $400 left of the $7,000 to $8,000 she had in September

2020. The circuit court determined that Garner’s income from February 2020 to October

2020 was $12,840 (seventeen weeks of unemployment benefits at $600 a week plus five

months at $528 a month). Garner’s counsel questioned if the circuit court was going to

deny an indigency determination for an $80 overage noting that the circuit court had the

discretion to grant or deny it. The circuit court stated that it was a bright-line rule to qualify

for indigency, and although it was a small amount over the poverty guideline, it was sticking

by the threshold and denying the petition for indigency. In its order denying Garner’s

request to be declared indigent, the circuit court found that under the federal poverty

guidelines, the threshold amount for one person was $12,760, that Gamer received income

of $12,840, and under the bright-line rule, Garner was not indigent.

The burden of establishing indigency is on the person claiming indigency status.

Cordero v. Ark. Dep’t of Human Servs., 2014 Ark. 64. Whether a person is indigent is a mixed

question of law and fact. Id. On appeal, the standard of review is whether the circuit court

abused its discretion in finding that the petitioner was not indigent. Bell v. Ark. Dep’t of

3
Human Servs., 2016 Ark. App. 72, 482 S.W.3d 728. Abuse of discretion requires that the

circuit court act improvidently, thoughtlessly, or without due consideration. Id. Our

appellate courts give due deference to the credibility determinations made by the circuit

court. Id.

In her first point, Garner contends that the circuit court erred in finding she was not

indigent because it improperly calculated her income and because it found that there was a

bright-line rule for indigency determination. While the circuit court is required by our

court rules to use the federal poverty guidelines in making its indigency determination, we

have not adopted a bright-line rule that any amount over those guidelines, regardless of any

other factors specific to the circumstances of the case being considered, automatically

preclude a person from being determined to be indigent. “When a decision is within the

discretion of the trial court, the trial court abuses that discretion by failing to exercise it.”

Lawrence v. Barnes, 2010 Ark. App. 231, at 13, 374 S.W.3d 224, 232 (citing Gullahorn v.

Gullahorn, 99 Ark. App. 397, 260 S.W.3d 744 (2007)). Because the circuit court failed to

exercise its discretion in determining the question of Garner’s indigency, we reverse its

determination and order. Furthermore, because of the passage of time that might allow for

a change of circumstances, we order that a new hearing on Garner’s current indigency status

be held. Due to our disposition of Garner’s first point, it is not necessary to address Garner’s

second and third points on appeal. The stay regarding Garner’s appeal of the termination of

her parental rights is continued until the issue of Garner’s indigency has been determined

by the circuit court.

Reversed and remanded.

4
GLADWIN and HIXSON, JJ., agree.

Weimar Law Office, by: DeeAnna Weimar, for appellant.

Callie Corbyn, Ark. Dep’t of Human Services, Office of Chief Counsel, for appellee.

Dana McClain, attorney ad litem for minor child.

5