author: ROBERT L. Brown, Justice.

text:
    Lesta MEADORS v. Eugene F. STILL, M.D.
    00-619
    40 S.W.3d 294
    Supreme Court of Arkansas
    Opinion delivered March 29, 2001

      Law Offices of Charles Karr, RA., by: Charles Karr and Shane Roughley, for appellant.

      Warner Smith & Harris, PLC, by: Wayne Harris, for appellee.
   ROBERT L. Brown, Justice.

This appeal brought by appellant Lesta Meadors is from an order granting summary judgment in favor of appellee Dr. Eugene F. Still. On appeal, Meadors questions the standard of review utilized by the trial court in granting summary judgment and urges that the trial court erred in determining that her cause of action was not fraudulently concealed by Still’s actions. We disagree that reversal is warranted, and we affirm the trial court.

Lesta Meadors was a forty-one-year-old woman at the time she filed her first complaint in this matter in 1999. She had been born with Poland’s Syndrome, which caused a cavity in the right side of her chest. At about age thirteen, she had her first breast augmentation, with an implant of 225 cc. in the right breast area. On March 15, 1984, she had a second breast augmentation. Dr. Still performed that surgery and inserted a 475 cc. implant in the right breast area and a 180 cc. implant in the left breast area. The operating room record at Sparks Regional Medical Center in Fort Smith for March 15, 1984, showed labels which read that Ms. Meadors received a round 175 cc. implant filled to 180 cc. for her left breast and that she received a round 475 cc. implant for her right breast. However, Dr. Still’s operative report which was prepared following that procedure reflected that “[f]inal reconstruction was accomplished with a round 175 cc implant, filled to 180, on the left[,]” and “[a] double lumen reconstructive implant was accomplished on the right, filled to 175 cc.” On April 18, 1984, Dr. Still wrote a letter to Ms. Meadors’s family doctor, Dr. Bill Dudding, and advised him that he had taken out a 225 cc. gel-filled implant on the right side and replaced it with a 475 cc. reconstructive implant.

In 1997, Ms. Meadors lived in Florida and had her third and final augmentation performed by Dr. Robert Brueck. Prior to the surgery, Dr. Brueck requested her medical records, and she provided him with Dr. Still’s operative report from her 1984 surgery. On September 17, 1997, Dr. Brueck removed Ms. Meadors’s right implant and replaced it with a 500 cc. implant. Dr. Brueck testified in his affidavit that the implant removed on her right side was larger than he had anticipated, as he had read arid relied upon Dr. Still’s operative report, which specified a 175 cc. implant on the right side. Because he had contemplated removing a smaller implant than actually existed, Dr. Brueck stated in his affidavit that he did not have a large enough implant on hand to achieve the symmetry between Ms. Meadors’s right and left breasts that she desired. The largest size implant he had available was 500 cc. He concluded in his affidavit that Dr. Still made a mistake in dictating his operative report.

On April 26, 1999, Ms. Meadors sued Dr. Still. In her complaint, she alleged that her left breast is now larger than her right and that she is faced with the alternative of having additional surgery or living with the asymmetrical results of her last implants. She further alleged that Dr. Still “affirmatively misrepresented to [her] and Dr. Brueck in his Operative Report the correct size of the right breast implant actually used.” According to Ms. Meadors, Dr. Still’s “affirmative misrepresentation as to the size of the implant actually used constitutes fraudulent concealment which tolls the statute of limitations.” She prayed for compensatory damages.

After Ms..Meadors amended her complaint on two occasions, Dr. Still filed a motion for summary judgment on November 8, 1999. On January 12, 2000, a hearing was held on the motion which consisted of arguments of counsel. On February 4, 2000, the trial court entered its order granting summary judgment in favor of Dr. Still and stated:

Although the question of fraudulent concealment is normally a question of fact, and is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Smothers v. Clouette, 326 Ark. 1017, 934 S.W.2d 923 (1996). JOHNSON v. ARTHUR, 65 Ark. App. 220 (1999) [.] Plaintiffs claim that the statute of limitations was tolled by fraudulent concealment on the part of the Defendants is without sufficient factual support in the record before the Court and'is rejected, and there is no evidence showing that any fraudulent concealment occurred.

Ms. Meadors, in her appeal, first questions the standard of review employed by the trial court in granting summary judgment. She specifically takes issue with the trial court’s statement in its order that a trial court may resolve fact issues as a matter of law “when the evidence leaves no room for a reasonable difference of opinion.” She contends that this court specifically rejected the “reasonable mind” approach to evaluating the merits of a motion for summary judgment in Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998). The trial court erred, according to her theory, when it relied on authority which set out the standard of review for summary judgment as whether reasonable minds could differ.

Ms. Meadors, in our judgment, has confused the standard of review for granting summary judgment on the one hand and granting summary judgment based on a statute-of-limitations defense involving fraud or fraudulent concealment on the other. If the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine issue as to any material fact, summary judgment in favor of the moving party shall be entered forthwith, according to our Rules of Civil Procedure. See Ark. R. Civ. P. 56(c). Our caselaw is absolutely clear on this. See, e.g., Crockett v. Essex, 341 Ark. 558, 19 S.W.2d 585 (2000); Milam v. Bank of Cabot, 327 Ark. 256, 937 S.W.2d 653 (1997); Renfro v. Adkins, 323 Ark. 288, 914 S.W.2d 306 (1996).

Our standard of review when considering whether the statute of hmitations has been tolled due to fraudulent concealment is altogether different:

When the running of the statute of hmitations is raised as a defense, the defendant has the burden of affirmatively pleading this defense. First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992), cert. denied, 510 U.S. 908 (1993). However, once it is clear from the face of the complaint that the action is barred by the applicable hmitations period, the burden shifts to the plaintiff to prove by a preponderance of the evidence that the statute of hmitations was in fact tolled. Id. Fraud suspends the running of the statute of hmitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. First Pyramid, supra. Although the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law. Alexander v. Flake, 322 Ark. 239, 910 S.W.2d 190 (1995).

Adams v. Arthur, 333 Ark. 53, 63, 969 S.W.2d 598, 602-03 (1998).

The trial court followed our clear precedent in the standard it employed to decide whether summary judgment was appropriate based on limitations or whether the statute was tolled due to fraudulent concealment. There was no error in this regard.

Ms. Meadors next contends that in 1984 the size of her right breast implant was fraudulendy concealed by Dr. Still. The statute of limitations for medical malpractice ordinarily is two years after the cause of action accrues. See Ark. Code Ann. § 16-114-203(a) (Supp. 1999). The date of the accrual of the cause of action is the date of the wrongful act complained of and no other time. Ark. Code Ann. § 16-114-203(b) (Supp. 1999). Here, however, Ms. Meadors claims that the statute of limitations was tolled by Dr. Still’s fraudulent concealment.

The crux of Ms. Meadors’s argument is that in 1997, Dr. Brueck read Dr. Still’s operative report from the 1984 surgery to say that the final volume of the right breast implant was 175 cc. This misstatement in the operative report was relied on by Dr. Brueck, as a prelude to his surgery. The wrong information about the breast implant is comparable to a foreign-object case, according to Ms. Meadors, where a doctor leaves a foreign object in the patient’s body following surgery. She cites this court specifically to Howard v. Northwest Arkansas Surgical Clinic, P.A., 324 Ark. 375, 921 S.W.2d 596 (1996) (barbed tip of a needle left in patient’s breast after tissue excised for biopsy); and Burton v. Tribble, 189 Ark. 58, 70 S.W.2d 503 (1934) (physician negligently left a roll of gauze in patient’s stomach after performing surgery). In Howard, we made these pronouncements in concluding that the statute of limitations was tolled: “The alleged act of concealment is part and parcel of the wrongful act complained of. Until the concealment ends, the wrongful act continues.” 324 Ark. at 383, 921 S.W.2d at 600. Also, in Howard, there was evidence that the physician involved had been informed that the foreign object remained in his patient and took no action. Moreover, the patient had no way of detecting the fraud. We held, as a result, that the limitations period was tolled even though the medical malpractice statute of limitations, § 16-114-203(b), provided that “[t]he date of the accrual of the cause of action shall be the date of the wrongful act complained of and no other time.”

Using these foreign-object cases as her legal authority, Ms. Meadors posits that Dr. Still should have known what he wrote in his operative report and that he had a duty to inform her if he made a mistake. She further asserts that there was some evidence that Dr. Still knew he had made an error. For example, she points to his letter dated April 18, 1984, to Dr. Dudding correctly referencing the 475 cc. implant in the right breast and a handwritten notation by Elaine Roberts, a registered nurse, dated April 8, 1992, which states that Dr. Still’s operative report says the implant on the right side was filled to 175 cc.

She concludes by advancing the argument that fraudulent concealment, in its broadest sense, embraces unintentional deception and that such an interpretation is a logical extension of Howard v. Northwest Arkansas Surgical Clinic, P.A., supra. She cites a Third Circuit Court of Appeals case, Swietlowich v. County of Bucks, 610 F.2d 1157 (3d Cir. 1979), for this proposition.

The principles governing appellate review of summary judgment cases have been often stated by this court:

The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter of law. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189 (1998). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a light most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.

Shelton v. Fiser, 340 Ark. 89, 95-96, 8 S.W.3d 557, 561 (2000) (quoting Adams v. Arthur, 333 Ark. 53, 62, 969 S.W.2d 598, 605 (1998)).

Although Ms. Meadors insists that this case is comparable to the foreign-object cases discussed above, her reliance on those cases is misplaced. First, the instant case is not one dealing with a foreign object. The operable statutory language dealing with the extension of the statute of limitations due to foreign objects left in the body reads as follows:

However, where the action is based upon the discovery of a foreign object in the body of the injured person which is not discovered and could not reasonably have been discovered within such two-year period, the action may be commenced within one (1) year from the date of discovery or the date the foreign object reasonably should have been discovered, whichever is earlier.

Ark. Code Ann. § 16-114-203 (b) (Supp. 1999). Dr. Still clearly left no unknown foreign object in the body of Ms. Meadors.

Second, the act allegedly perpetrated was not done in such a way that it concealed itself; on the contrary, Dr. Still’s operative report was part of Ms. Meadors’s medical record. It was readily available and was disclosed to third parties, including Ms. Meadors and Dr. Brueck. Third, while we do have a professional defendant in the form of Dr. Still, there is no evidence that he actually knew of the inconsistency among the reports. Furthermore, the letter written to the family physician, Dr. Dudding, with the correct amounts for each implant does not indicate that Dr. Still believed that a mistake had been made. No proof was presented that even suggests Dr. Still penned the letter to Dr. Dudding in an attempt to correct his operative report. Fourth, there is no evidence that Dr. Still was ever informed of the inconsistency within the various reports. And, finally, contrary to the foreign-object cases, here we have a plaintiff in Ms. MLeadors who could easily have detected any inconsistency in the reports by merely requesting her medical records in their entirety.

This case most readily approximates the situation in Shelton v. Fiser, supra. That case involved an eleven-year-old boy, Nathan Piccirilli, and his treatment by several physicians for injuries he sustained to his right arm in a go-cart accident. Karen Shelton, his mother, filed the suit as next friend of Piccirilli, and raised fraudulent concealment as one of her claims against the treating physicians. The trial court granted summary judgment in favor of the physicians on the fraudulent concealment claim, and this court affirmed. We first discussed the standard of review for orders of summary judgment, and then went on to address fraudulent concealment:

Fraudulent concealment suspends the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of due diligence. See Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 684 (1999); First Pyramid Life Ins. Co. v. Stoltz, 311 Ark. 313, 843 S.W.2d 842 (1992), cert. denied 510 U.S. 908 (1993). This court also noted that “[a]lthough the question of fraudulent concealment is normally a question of fact that is not suited for summary judgment, when the evidence leaves no room for a reasonable difference of opinion, a trial court may resolve fact issues as a matter of law.” Martin, 339 Ark. at 154, 3 S.W.3d at 687.

This court has recently addressed what constitutes fraudulent concealment:

In order to toll the statute of limitations, we said that plaintiffs were required to show something more than a continuation of a prior nondisclosure. We said that there must be evidence creating a fact question related to “some positive act of fraud, something so furtively planned and secretly executed as to keep the plaintiff s cause of action concealed, or perpetrated in a way that it conceals itself.”
Martin, 339 Ark. at 154, 155, 3 S.W.3d at 687 (quoting Adams v. Arthur, 333 Ark. at 68, 969 S.W.2d at 605 and Norris v. Bakker, 320 Ark. 629, 633, 899 S.W.2d 70, 72 (1995)). Accordingly, it is clear from our caselaw that not only must there be fraud, but the fraud must be furtively planned and secretly executed so as to keep the fraud concealed.

Shelton, 340 Ark. at 96, 8 S.W.3d at 561-62.

Based on the reasoning in Shelton, it was incumbent on Ms. Meadors to demonstrate something more than a continuation of a prior nondisclosure. Rather, there had to be some proof offered which created a fact question related to a “positive act of fraud.” No proof of fraud was offered, much less fraud that was “furtively planned and secretly executed.” Instead, at the January 12, 2000 hearing on Dr. Still’s motion for summary judgment, Ms. Meadors merely argued that Dr. Still was negligent in drafting the operative report and that because of the way it was drafted, it was fraudulently concealed from her. She further argued that because of the way the operative report was written, the act concealed itself. And, again, she asserted that by writing the letter to Dr. Dudding, this indicated that Dr. Still knew a mistake had been made.

We are unwilling to make the leaps in logic that Ms. Meadors proposes. There was no proof of fraudulent concealment. In fact, the proof was just the opposite. As in the Shelton case, Dr. Still divulged the correct information regarding the right breast implant to another physician. Moreover, we are unwilling to extend the doctrine of fraudulent concealment to include negligent acts with unintended consequences. Ms. Meadors presents no proof to persuade us otherwise but only argues theories. The trial court did not err in its conclusion that summary judgment was appropriate because no fraudulent concealment transpired.

Affirmed.


source: Caselaw Access Project

author: ANNABELLE Clinton Imber, Justice.

license: Public Domain

text:
    Judy Ann BEARDEN v. ARKANSAS DEPARTMENT of HUMAN SERVICES
    01-31
    42 S.W.3d 397
    Supreme Court of Arkansas
    Opinion delivered March 29, 2001

      Robert L. Herzfeld, Jr., for appellant.

      Kathy L. Hall, for appellee.
   ANNABELLE Clinton Imber, Justice.

Judy Ann Bearden appeals the order of the Saline County Chancery Court terminating her parental rights with respect to her two oldest children. This appeal is before us on petition for review of the opinion issued by the Arkansas Court of Appeals in Bearden v. Arkansas Dep’t of Human Servs., 72 Ark. App. 184, 35 S.W3d 360 (2000), reversing the chancery court’s order. We have jurisdiction pursuant to Ark. Sup. Ct. R. 2-4 (c). Upon a petition for review, we consider a case as though it had been originally filed in this court. Estridge v. Waste Management, 343 Ark. 276, 33 S.W3d 167 (2000) (citing Maxey v. Tyson Foods, Inc., 341 Ark. 306, 18 S.W3d 328 (2000); Woodall v. Hunnicuit Construction, 340 Ark. 377, 12 S.W.3d 630 (2000); White v. Georgia-Pacific Corporation, 339 Ark. 474, 6 S.W3d 98 (1999); Burlington Indus, v. Pickett, 336 Ark. 515, 988 S.W2d 3 (1999)). We hold that the chancellor’s decision to terminate Ms. Bearden’s parental rights must be affirmed.

Ms. Bearden is the natural mother of three children, Devin Bearden, born August 23, 1993, Peppermint Koolaid Lacira Welsh, born November 12, 1997, and Jaresha Ashley Dawn Welsh, born August 8, 1999. On November 25, 1997, the Arkansas Department of Human Services (“DHS”) filed a petition for emergency custody in the Saline County Chancery Court seeking emergency custody of newborn Peppermint, who was born five weeks premature and weighed only five pounds. Because of her small size, she had to be fed frequently and bundled to maintain her body temperature.

Ms. Bearden was discharged the day after she gave birth to Peppermint and did not contact the hospital again regarding her baby until the following day, November 14, 1997, when she expected the baby to be discharged. She contacted the hospital again at approximately 11:00 p.m. on November 15. When she did visit the hospital, personnel became concerned about Ms. Bearden’s ability to care for the baby because, despite being given specific instructions to keep Peppermint warm, she kept unwrapping her. Ms. Bearden reported to hospital personnel that she had no place to go when she left the hospital with the baby, so she went to her mother’s home even though she had recendy been asked to leave that home. At the hearings, Ms. Bearden claimed to have a baby bed, diapers, and the ability to provide formula for the baby. However, DHS workers saw no evidence of these items, other than the diapers and formula sent home with the baby from the hospital. DHS workers also expressed concerns about Ms. Bearden’s living conditions. Her mother’s home was crowded, with no additional room for the baby. Ms. Bearden was ineligible for public housing. She had no income and was not receiving government benefits, such as Medicaid or Food Stamps. The workers were also concerned that, if Ms. Bearden was able to obtain employment, she would leave the baby in the care of her mother who suffered from memory loss. Finally, with regard to Peppermint’s welfare, DHS workers testified that Ms. Bearden had received prenatal care only twice during her pregnancy, admitted to using cocaine during her pregnancy, and tested positive for both cocaine and marijuana following the birth of the baby.

A few weeks after taking Peppermint into custody, DHS also petitioned for emergency custody of Ms. Bearden’s older child, Devin. DHS asserted that emergency custody was necessary because, on November 29, 1997, police were called to Ms. Bearden’s home by concerned neighbors whose children informed them that Devin was sitting on the steps of his house smoking marijuana. According to the officer on the scene, Devin was running down the middle of the road when he arrived. Witnesses informed the officer that they had seen Devin smoking earlier. Devin admitted that he had been smoking, that he stole his cigarette from the table where his grandfather rolls his cigarettes, and that he lit the cigarette himself by turning on the gas stove. When asked if he knew what a joint was, Devin responded “tobacco,” and when asked what he had been smoking, he responded “tobacco.” He promised that he would not smoke anymore. The officer found marijuana mixed with tobacco and rolling papers on a table in Ms. Bearden’s living room. When testimony of Devin’s smoking activities was elicited at trial, Ms. Bearden spontaneously exclaimed: “He’s been doing that since he’s been in diapers and I whopped his butt for it and it didn’t do no good.”

Devin had been left in the care of Ms. Bearden’s mother on the afternoon that he was taken into custody. Ms. Bearden’s mother, upon questioning, became confused and talked repeatedly about spaghetti. The officer on the scene observed Devin’s interaction with his grandmother while waiting for DHS to respond to his call. Devin’s grandmother tried to catch him in the yard, but he ran away from her, threw sticks and rocks at her, and kicked her to break loose whenever she managed to get hold of him. After observing this, the officer took Devin into custody. Upon returning to the house after taking Devin to the police department, the officer, accompanied by a DHS investigator, encountered Ms. Bearden’s father and uncle arriving home in an extremely intoxicated state.

Both children were adjudicated dependent-neglected on March 13, 1998, and counsel Was appointed to represent Ms. Bearden. In various orders filed by the trial court during the dependency-neglect proceedings, Ms. Bearden was instructed to seek inpatient treatment for her drug problem, undergo a psychiatric evaluation, submit to random drug screens, and to enter into and participate in the Women and Children in Sobriety Center. On August 6, 1998, the trial court entered an order finding that Ms. Bearden had not complied with the orders of the court by failing to complete a substance-abuse program, testing positive for cocaine at least once since the previous court hearing, fading to attend Alcoholics Anonymous regularly, and failing to complete a psychological evaluation. Ms. Bearden was again ordered to complete a psychiatric evaluation, attend Alcoholics Anonymous regularly and obtain a sponsor, complete parenting classes, and attend counseling. Ms. Bearden was held in contempt on November 13, 1999, for her failure again to abide by the court’s orders to attend Acoholics Anonymous regularly and obtain a sponsor, to complete parenting classes, and to submit to random drug screens.

Ultimately, on December 17, 1998, DHS filed a petition to terminate Ms. Bearden’s parental rights with regard to both Devin and Peppermint. Athough Ms. Bearden’s counsel successfully obtained a continuance in the termination proceedings because Ms. Bearden was finally obtaining drug treatment, had applied for social security benefits, and had obtained employment, subsequent hearings revealed that she had resumed her drug abuse, tested positive for cocaine, had been denied social security benefits, and did not maintain her employment.

In support of termination, DHS offered evidence that Ms. Bearden had failed to (1) maintain a stable residence and was ineligible for public housing for three years; (2) obtain stable employment; and (3) complete drug-treatment or parenting classes. In addition, Ms. Bearden continued to use cocaine and repeatedly missed visitations or arrived late to visit her children. Athough DHS successfully gained her entry to the Akansas Cares treatment facility and agreed to an extended term of visitation so that Devin and Peppermint could five with her at the facility, Ms. Bearden was soon asked by Akansas Cares to leave the facility. The children were again placed in foster care. Ms. Bearden entered other treatment facilities as well, but was never able to remain drug free. Every time she left a drug treatment facility she tested positive for cocaine. By the time the termination hearing occurred, Ms. Bearden’s probation had been revoked and she was incarcerated because of her continued drug abuse, association with convicted felons, and inability to maintain a stable address. Ms. Bearden’s probation officer testified that “[e]very time I talked to Judy, it was a new address. It was never the same, and also the continuous use of cocaine.”

DHS also presented evidence that Ms. Bearden did not interact appropriately with her children during visitation. Rather than playing with the children and reading them stories, Ms. Bearden would sit on the sofa and talk about herself. When Devin approached her with toys and books, she would acknowledge him, hut would not play with him or read the book. On one occasion, Ms. Bearden became irritated with the children after only thirty minutes and informed the worker that she was tired of the children already. She then sat on the sofa and talked to the worker for the remainder of the hour-long visitation.

In an order entered on October 16, 1999, the Saline County Chancery Court terminated the parental rights of Ms. Bearden with respect to her two oldest children, Devin and Peppermint. The trial court determined, as a basis for termination, that DHS had proven by clear and convincing evidence that Ms. Bearden “demonstrated repeatedly an inability or unwillingness to correct the problems that necessitated the removal of the children from her custody, specifically, maintaining a drug-free lifestyle, a stable home, and establishing stable employment.” The trial court found that it would be futile and detrimental to the children’s best interests, safety, and welfare to remain in the care and custody of Ms. Bearden, and consequently ordered that Ms. Bearden’s parental rights be terminated. It is from this order that appeal is taken.

I. Waiver of Counsel

For her first point on appeal, Ms. Bearden argues that the trial court deprived her of her right to waive the assistance of counsel at the termination hearing. In support of this argument, Ms. Bearden asserts that the constitutional right to the assistance of counsel at parental-termination hearings must necessarily carry with it the inverse right to waive that assistance if desired.

Whether due process requires the appointment of counsel in a particular parental-termination proceeding is a matter for the trial court to determine, subject to appellate review. Lassiter v. Department of Soc. Servs., 452 U.S. 18, 32, 101 S. Ct. 2153, 2162 (1981). Although it may be wise public policy for the States to adopt higher standards of protection for parents in dependency-neglect and termination proceedings, the threshold requirement for state courts in determining whether to appoint counsel to indigent parents in termination proceedings is fundamental fairness. Id., 452 U.S. at 33-34, 101 S. Ct. at 2163. Consequently, according to the Supreme Court, there is no absolute due process right to counsel in all parental-termination proceedings. Id. Rather,' it is an issue that must be addressed on a case-by-case basis. Id. The State of Arkansas has chosen to allow the appointment of counsel for indigent parents in all parental-termination proceedings. Ark. Code Ann § 9-27-316(h) (Supp. 1999). However, this is a State-conferred statutory right. The due process right to counsel arises only if the circumstances of each particular case indicate that fundamental fairness requires the appointment of counsel. Lassiter v. Department of Soc. Servs., supra.

In the instant case, the trial court did not make a due process determination when appointing counsel to represent Ms. Bearden. However, assuming without deciding, that due process required the trial court to appoint counsel to represent Ms. Bearden in this matter, her waiver of that due process right must also satisfy constitutional standards. “It is... well established that an accused has a constitutional right to represent himself and make a voluntary, knowing, and intelligent waiver of his constitutional right to the assistance of counsel in his defense. But every reasonable presumption must be indulged against the waiver of fundamental constitutional rights.” Akins v. State, 330 Ark. 228, 237-38, 955 S.W.2d 483 (1997) (quoting Oliver v. State, 323 Ark. 743, 918 S.W.2d 690 (1996).

A waiver of the fundamental right to the assistance of counsel is valid only when:

(1) the request to waive the right to counsel is unequivocal and timely asserted;
(2) there has been a knowing and intelligent waiver of the right to counsel; and
(3) the defendant has not engaged in conduct that would prevent the fair and orderly exposition of the issues.

Collins v. State, 338 Ark. 1, 6, 991 S.W.2d 541 (1999); see also Mayo v. State, 336 Ark. 275, 984 S.W.2d 801 (1999).

In the instant case, the following colloquy occurred at the outset of the termination hearing:

The COURT: Okay. I think it’s ready for trial. I appointed Mr. Herzfeld to represent you, Ms. Bearden.
Ms. BEARDEN: Yeah, I know that.
The COURT: And he’s talked to you, I know at least — well, he’s talked to you several times. Has he explained to you what the purpose of this hearing is?
Ms. Bearden: Yes, he did.
The COURT: He indicated to me just moments ago that he thought you weren’t interested in him representing you, is that true?
Ms. BEARDEN: Yes, it is, but I really don’t know what to do, to be honest with you. I’ve never heard anything or seen anything like this in my life.
THE COURT: I know. That’s why I appointed Mr. Herzfeld to represent you. I mean, I certainly won’t force him to if you are going to insist that he not.
Ms. BEARDEN: Uh, I think I would rather represent myself.
The Court: Okay. You just got through telling me you didn’t have any idea what was going on here and you’ve never been involved in anything like this in your life.
Ms. BEARDEN: I said I’ve never seen or heard of a case like this before where —
THE COURT: Why wouldn’t you want Mr. Herzfeld to represent you?
Ms. Bearden: Because I —
The Court: He’s a licensed attorney who does know what’s going on.
Ms. BEARDEN: He does, I know. I do, too. I know what’s going on, too, sir.
The COURT: Well, you don’t want him to represent you?
Ms. BEARDEN: (No oral response.)
The COURT: I’m going to order that he represent you anyway.
Ms. Bearden: Okay.
The COURT: Unless you have some alternative. Do you have another attorney?
Ms. Bearden: No.

Ms. Bearden was far from unequivocal in her request to waive counsel. When asked by the court if it was true that she wanted to waive counsel, Ms. Bearden responded that she “really [did not] know what to do.” She later stated that she thought she wanted to represent herself, but when again asked if she did not want counsel to represent her, she gave no response. Because of the equivocal nature of Ms. Bearden’s request, the trial court did not err in refusing to allow her to proceed pro se. See Collins v. State, supra.

Ms. Bearden argues alternatively that the trial court was not authorized pursuant to Arkansas Code Annotated section 9-27-316 to force counsel upon her. The State argues, conversely, that the statute does not authorize the parent to waive the assistance of counsel once counsel has been appointed.

(1) In all proceedings to remove custody from a parent or guardian or to terminate parental rights, the parent or guardian shall be advised, in the dependency-neglect petition or the ex parte emergency order and the first appearance before the court, of the right to be represented by counsel at all stages of the proceedings and the right to appointed counsel if indigent.
(2) Upon request by a parent or guardian and a determination by the court of indigence, the court shall appoint counsel for the parent or guardian in all proceedings to remove custody or terminate parental rights of a juvenile.

Ark. Code Ann. § 9-27-316(h) (Supp. 1999).

Although the court of appeals held that indigent parents have the right to waive counsel pursuant to section 9-27-316(h), that determination was premature. Bearden v. Arkansas Dep’t of Human Servs., 72 Ark. App. at 187-88, 35 S.W.3d at 362. Ms. Bearden argued that she had a due process right to the appointment of counsel and, therefore, necessarily had the right to waive that counsel. Assuming, without deciding, that Ms. Bearden did have a due process right to counsel, her request to waive counsel was not unequivocal. It would, therefore, have been error for the trial court to accept that waiver, regardless of the provisions contained in the statute, because her request did not satisfy constitutional standards for the waiver of counsel.

II. Sufficiency of the Evidence

“Where the return of a juvenile to the family home is contrary to the juvenile’s health, safety, or welfare, and it appears from the evidence that a return to the family home cannot be accomplished in a reasonable period of time, as viewed from the juvenile’s perspective,” DHS may move to terminate the parental rights of a child for whom the agency is attempting to clear permanent placement. Ark. Code Ann. § 9-27-341(a) (Supp. 1999).

We have held that when the issue is one involving the termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. J. T v. Arkansas Dep’t of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). Termination of parental rights is an extreme remedy and in derogation of the natural rights of the parents. Wade v. Arkansas Dep’t. of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). Parental rights, however, will not be enforced to the detriment or destruction of the health and well-being of the child. Id. The facts warranting termination of parental rights must be proven by clear and convincing evidence. In reviewing the trial court’s evaluation of the evidence, we will not reverse unless the court’s finding of clear and convincing evidence is clearly erroneous. Baker v. Arkansas Dep’t. of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). Clear and convincing evidence is that degree of proof which will produce in the factfinder a firm conviction regarding the allegation sought to be established. Id. In resolving the clearly erroneous question, we must give due regard to the opportunity of the chancery court to judge the credibility of witnesses. Additionally, we have noted that in matters involving the welfare of young children, we will give great weight to the trial judge’s personal observations. Id.

Ullom v. Arkansas Dep’t of Human Servs., 340 Ark. 615, 621, 12 S.W.3d 204 (2000).

An order forever terminating parental rights must be based upon clear and convincing evidence that the termination is in the best interests of the child, taking into consideration the likelihood that the child will be adopted and the potential harm caused by continuing contact with the parent. Ark. Code Ann. § 9-27-341(b)(3)(A). In addition to determining the best interests of the child, the court must find clear and convincing evidence that circumstances exist that, according to the statute, justify terminating parental rights. Ark. Code Ann. § 9-27-341 (b)(3)(B). One such set of circumstances that may support the termination of parental rights is that the child “has been adjudicated by the court to be dependent-neglected and has continued out of the home for twelve (12) months and, despite a meaningful effort by the department to rehabilitate the home and correct the conditions which caused removal, those conditions have not been remedied by the parent.” Ark. Code Ann. § 9-27-341(b)(3)(B)(i)(a). It is not necessary that the twelve-month period out of the home be consecutive. Ark. Code Ann. § 9-27-341(b) (3) (B)(i)(b).

There is no dispute that Devin and Peppermint were adjudicated dependent-neglected on March 13, 1998, that they continued out of the home for more than twelve months, and that the conditions causing their removal from the home had not been remedied at the time of termination. Ms. Bearden argues on appeal, however, that the trial court erred because (1) there was insufficient evidence presented at the termination hearing to support the initial removal of the children from her home; (2) there was insufficient evidence that DHS made a meaningful effort to rehabilitate Ms. Bearden’s home and correct the conditions that caused the removal; and (3) there was insufficient evidence that reunification was not in the best interests of the children.

In support of her argument that the State should have presented sufficient evidence at the termination hearing to support the initial decision to remove the children from her custody, Ms. Bearden argues that the state is required to present its entire case against the parent in the final termination hearing. However, the case of Briscoe v. State, 323 Ark. 4, 912 S.W.2d 425 (1996), upon which Ms. Bearden relies, does not stand for this proposition. Briscoe only states that it was harmless error for a trial court to conduct hearings in violation of the parent’s right to counsel because the parent was represented by counsel at the final termination hearing, and all of the evidence that had been presented at the hearings without counsel was again introduced and was subject to cross-examination by counsel at the final hearing. This holding is peculiar to the facts of the Briscoe case and does not stand for the proposition that, in all termination hearings, the evidence presented at all prior hearings in the case must be reintroduced at the final hearing. To the contrary, the proceedings and orders pertaining to a termination-of-parental-rights case are a continuation of the dependency-neglect case and the evidence adduced at the dependency-neglect proceedings may be considered by the court during termination proceedings. Wade v. Arkansas Dep’t of Human Servs., 337 Ark. 353, 361, 990 S.W.2d 509 (1999). A review of the evidence set out above clearly demonstrates grounds for adjudicating the children dependent-neglected and removing them from the care of their mother. In any event, section 9-27-341 (b) (3) (B)(i) (a) does not require a second dependency-neglect adjudication at the final hearing. It simply requires DHS to prove that the children have been adjudicated dependent-neglected.

Ms. Bearden next argues that there was insufficient evidence that DHS took meaningful efforts to rehabilitate her home and correct the conditions that caused removal. We disagree. According to testimony, DHS workers provided Ms. Bearden with transportation, referrals to psychiatric treatment, drug abuse treatment, and parenting classes. They transported her children to visit her when she was in treatment or in jail, and contacted HUD regarding her eligibility for public housing. Unfortunately, Ms. Bearden failed to take advantage of any of the forms of assistance she was offered. Despite DHS’s attempts to provide drug treatment for Ms. Bearden, which they repeatedly stated was the primary objective in advancing the case plan, Ms. Bearden withdrew herself from all treatment programs, failed to attend Alcoholics Anonymous or Narcotics Anonymous programs with any consistency, and repeatedly tested positive for cocaine use. DHS even made it possible for Ms. Bearden to enter a residential program with her children, but she failed to conform to the standards of the center and was asked to leave the program, resulting in DHS again placing the children in foster care. Ms. Bearden’s argument that DHS failed to prove that it made a meaningful effort to assist her in reunification is without merit.

Finally, Ms. Bearden argues that there was insufficient evidence that reunification was not in the best interests of the children. Again, we disagree. Evidence was presented that the foster family with whom the children were living wanted to adopt them. The children had been out of their mother’s care for nearly two full years, and for Peppermint the separation began at birth. Ms. Bearden was incarcerated for drug abuse at the time of termination and would not be released on parole until she was able to obtain stable housing, a feat she had been unable to accomplish in the two years pending termination of her parental rights. She had been unable to maintain steady employment when not incarcerated, continued to test positive for drugs, and refused to obtain treatment. Finally, case workers testified that they were concerned about the potential harm to the children that could occur by having to five in continued uncertainty. The children existed in a constant state of anticipation, waiting for visitations with their mother from week to week for which Ms. Bearden frequently did not appear or at which she did not interact with the children. According to the caseworkers, Devin and Peppermint were in need of permanency after two years of uncertainty. This is the objective of the termination procedure, and cannot be lightly discounted. Ark. Code Ann. § 9-27-341 (a).

For these reasons, we hold that the trial court did not err in finding clear and convincing evidence to support the termination of Ms. Bearden’s parental rights with . regard to Devin and Peppermint.

Affirmed.

       The parental rights of Devin’s father, Gabriel Coll, were terminated by default simultaneously with the termination of Ms. Bearden’s rights. The termination of Mr. Coil’s parental rights is not before us in this appeal.

       Although DNA testing was conducted on two putative fathers during the course of this action, the trial court was ultimately unable to determine the paternity of Peppermint. The trial court ordered that the parental rights of any putative or unnamed father of Peppermint be terminated. That order is not appealed.

       DHS took custody of Jaresha on August 9, 1999, the day following her birth. She was subsequently adjudicated dependent-neglected, but that order is not part of the present appeal.


author: RAY THORNTON, Justice. ANNABELLE Clinton Imber, Justice,

text:
    ARKANSAS PRESBYTERY of the Cumberland Presbyterian Church and the Reverend Michael Qualls, Moderator of the Arkansas Presbytery v. Gary D. HUDSON, Palmetto Cumberland Presbyterian Church by and Through Its Elders, Bobby Gene Jones, Carol Norris, Arvil Hudson, Glen Bond, Sr., Kenneth Norris, Kurt Richter, as Trustees for the Palmetto Cumberland Presbyterian Church
    01-23
    40 S.W.3d 301
    Supreme Court of Arkansas
    Opinion delivered March 29, 2001

      Peel Law Firm, P.A., by: Richard L. Peel and John R. Peel, for appellants.

      McKinnon Law Firm, by: Laura J. McKinnon, for appellees.
   RAY THORNTON, Justice.

This appeal involves a dispute over the ownership of church property located on Crow Mountain in Pope County following the separation of a local Presbyterian congregation from the hierarchical Cumberland Presbyterian Church. Appellants, Arkansas Presbytery of the Cumberland Presbyterian Church (“Arkansas Cumberland”) and the Reverend Michael Qualls, moderator of the Presbytery, appeal an order from the Pope County Chancery Court, granting a petition to quiet title in appellees, Gary Hudson, Palmetto Cumberland Presbyterian Church (“Palmetto”), and the trustees of Palmetto. We affirm the trial court’s rulings.

I. Background

Palmetto was formed in 1949 as a member of the National Cumberland Presbyterian Church (“National Church”), a hierarchical or connectional church, that is governed in Arkansas by Arkansas Cumberland. The National Church has a written constitution contained in the Confession of Faith.

The property at issue is three separate tracts of land used by Palmetto for its church, parsonage, and graveyard. Tract A is the property on which the Palmetto church sits. On September 21, 1949, M.L. and Cora Dixon conveyed title to Tract A by warranty deed to Cumberland Presbyterian Church — Ewing Presbytery, Arkansas, the former title of Arkansas Cumberland. Palmetto paid one-hundred dollars for the real estate, and no money was received from Arkansas Cumberland to assist in the purchase. During the next year, a church was constructed on the property and was financed by the Palmetto congregation without any assistance from Arkansas Cumberland or the National Church. In 1968, the local Palmetto church requested that title to the church property be conveyed to Palmetto, and on July 2, 1968, a deed was executed by Arkansas Cumberland to the elders of the Palmetto church to hold the property in trust for the local Palmetto church. Neither a reservation of title nor an establishment of a trust in favor of Arkansas Cumberland or the National Church is reflected in the deed.

Tract B is a two-acre church cemetery. On October 10, 1968, Mrs. Cora Dixon conveyed title to Tract B to the local elders as trustees for Palmetto. The Palmetto congregation paid for tract B without the assistance of Arkansas Cumberland or the National Church. On February 28, 1977, Palmetto purchased Tract C for $18,000 by a warranty deed for the church parsonage, or manse, in the name of the elders as trustees of Palmetto. The church obtained a mortgage for the purchase price at a local bank, and the local congregation contributed to the payment of the mortgage. Palmetto did not receive any money from the National Church or Arkansas Cumberland for the repayment of the loan.

At the time of the conveyances of Tract A and Tract B, the National Church constitution contained the following language from the Cumberland Presbyterian Digest of 1957, including the supplement of the actions of the 1963 General Assembly:

11. A. Church Property Should Be Deeded to the Local Presbytery.
B. We further recommend that the following additional provisions be adopted regarding the legal steps to be taken by presbyteries for the protection, transfer, or sale of church property:
(1) Church property should be deeded to the trustees of the local presbytery for the benefit and use of the local church, which local trustees will be in complete charge so long as the church remains organized.

This language is also found in the Cumberland Presbyterian Digest of 1975, the church law in effect at the time of the 1977 conveyance of Tract C.

In 1979, the Supreme Court determined that civil courts faced with issues of ownership of church property could properly apply “neutral principles of law” in resolving disputes as to the ownership of church property. Jones v. Wolf, 443 U.S. 595 (1979). Following the Jones case, the National Church adopted in 1984 an amendment to its constitution to replace the constitutional language endorsing the principle of local ownership of church property. According to the testimony of Mr. Gary Hudson, the church clerk, Palmetto had knowledge of this constitutional amendment because a delegate from Palmetto attended the national meeting, and the Palmetto delegate voted “no” to this constitutional amendment.

The rift between Palmetto and Arkansas Cumberland widened in 1992 when Palmetto refused to meet its financial obligations to Arkansas Cumberland, and Palmetto was reprimanded by the statewide church. Mr. Hudson testified that Palmetto contributed monies and submitted annual reports to the Arkansas Cumberland, as required by the church constitution, through 1991. Hudson further testified that Palmetto paid dues to Arkansas Cumberland until 1990 or 1991.

On August 27, 1995, Palmetto submitted a formal, written notice that indicated its intent to withdraw from Arkansas Cumberland. The local, twenty-member congregation unanimously agreed to the withdrawal. Arkansas Cumberland then appointed a commission, pursuant to the church constitution, that recommended the dissolution of Palmetto and a merger with a nearby Mars Hill Cumberland Presbyterian Church for those members who wished to remain affiliated with the National Church. Reverend Wayne Wood, a former moderator of the Arkansas Cumberland, testified, “I have not located a single member [of Palmetto] to be a party with me in this lawsuit to get the property.”

The members of Palmetto refused to vacate the property or to surrender the church records as personal property. Arkansas Cumberland filed an action in replevin and for unlawful detainer, which was transferred to chancery court and consolidated with Palmetto’s action to quiet title. The trial court granted Palmetto’s petition to quiet title on July 8, 1999. From these orders, appellants bring this appeal. The controversy requires that we articulate neutral principles of law for review of the questions presented.

II. Standard of review

Our standard of review in chancery cases is de novo. This court has been precise in stating what de novo review entails:

Equity cases are tried de novo on appeal upon the record made in the chancery court, and the rule that this court disposes of them and resolves the issues on that record is well established; the fact that the chancellor based his decision upon an erroneous conclusion does not preclude this court’s reviewing the entire case de novo. An appeal in a chancery case opens the whole case for review. All of the issues raised in the court below are before the appellate court for decision and trial de novo on appeal in equity cases involves determination of fact questions as well as legal issues. The appellate court reviews both law and fact and, acting as judges of both law and fact as if no decision had been made in the trial court, sifts the evidence to determine what the finding of the chancellor should have been and renders a decree upon the record made in the trial court. The appellate court may always enter such judgment as the chancery court should have entered upon the undisputed facts in the record.

Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979) (citations omitted). We do not reverse a finding of fact of the chancery court unless we conclude that the chancery court has clearly erred. Bendinger v. Marshalltown Trowell Co., 338 Ark. 410, 994 S.W.2d 468 (1999); Saforo & Assoc., Inc. v. Porocel Corp., 337 Ark. 553, 991 S.W.2d 117 (1999). We have said,- in addition, that a finding is clearly erroneous when, even though there is evidence to support it, the appellate court is left with the definite and firm conviction that a mistake has been made. Bendinger v. Marshalltown Trowell Co., supra.

III. Neutral-principles approach

We first address whether Arkansas should adopt the “neutral principles of law” approach under Jones v. Wolf, 443 U.S. 595 (1979), and more specifically, whether the trial court failed to consider the 1984 amendment to the National Church constitution, and erred in ruling that the title to the church property remained in the local Palmetto congregation.

Jones, supra, involved a dispute over the ownership of church property following a schism in a local church affiliated with the hierarchical church organization. The “question for decision,” said the Court, was “whether civil courts, consistent with the First and Fourteenth Amendments to the Constitution, may resolve the dispute on the basis of ‘neutral principles of law,’ or whether they must defer to the resolution of an authoritative tribunal of the hierarchical church.” Id.

The Supreme Court then determined that, when determining the resolution of issues outside the realm of “religious doctrine of polity,” the “neutral principles of law” approach should prevail. Id. This approach involves an examination of the following: (1) the language of the deeds; (2) the terms of the local church charters; (3) the state statutes governing the holding of church property, and (4) the provisions in the constitution of the general church concerning the ownership and control of church property. Id.

The Court explained the rationale behind this neutral-principles approach:

[I]t is completely secular in operation, and yet flexible enough to accommodate all forms of religious organization and polity. The method relies exclusively on objective, well-established concepts of trust and property law .... It thereby promises to free civil courts completely from entanglement in questions of religious doctrine, polity, and practice.

Id. The Court then said that “at least in general outline,” the “neutral principles of law” approach is consistent with the foregoing principes. Id. The neutral-principles approach was approved in Maryland & Va. Churches v. Sharpsburg Church, 396 U.S. 367 (1970), where a state court settled a local church property dispute on the basis of the language of the deeds, the terms of the local church charters, the state statutes governing the holding of church property, and the provisions in the constitution of the general church concerning the ownership and control of church property. That approach entailed “no inquiry into religious doctrine.” Id. Other jurisdictions have adopted the neutral-principles approach. See Church of God in Christ, Inc. v. Graham, 54 F.3d 522 (8th Cir. 1995); Presbytery of Elijah Parish Lovejoy v. Jaeggi, 682 S.W.2d 465 (Mo. 1985).

We now expressly adopt the neutral-principles approach outlined by the United States Supreme Court in fones, supra, as the appropriate means of resolving church property disputes. In Arkansas, we recognized the neutral-principles approach in Gipson v. Brown, 288 Ark. 422, 706 S.W.2d 369 (1986), when we stated: “[S]tate courts can only become involved in church disputes when ‘neutral principles’ of law can be applied to resolve the dispute.” Id. We also acknowledged this approach in West v. Belin, 314 Ark. 40, 858 S.W.2d 97 (1993). However, we did not specifically outline the neutral-principles approach in either Gipson, supra, or West, supra. Because we have recognized this approach in prior case law, and because it has been approved by our United States Supreme Court, we expressly adopt the neutral-principles standard in order to reach the merits of this appeal.

IV Church property dispute

In our application of the neutral-principles approach, we must refrain from resolving the dispute on the basis of “religious doctrine and practice” and must rely “exclusively on objective, well-established concepts of trust and property law. . . [.]” Jones, supra. Any documents, such as the church constitution, pertinent to the dispute, must be scrutinized in purely secular terms. If these documents “incorporate!] religious concepts in the provisions relating to the ownership of property” and if the interpretation of those instruments requires the resolution of a religious matter, then we “must defer to the resolution of the doctrinal issues by the authoritative ecclesiastical body.” Id.

When we are called upon to construe deeds and other writings, we are concerned primarily with ascertaining the intention of the parties, and such writings will be examined from their four corners for the purpose of ascertaining that intent from the language employed. Webber v. Webber, 331 Ark. 395, 962 S.W.2d 345 (1998). In reviewing instruments, our first duty is to give effect to every word, sentence, and provision of a deed where possible to do so. Id. We will not resort to rules of construction when a deed is clear and contains no ambiguities, but only when its language is ambiguous, uncertain, or doubtful. Bennett v. Henderson, 281 Ark. 222, 663 S.W.2d 180 (1984); Barnes v. Barnes, 275 Ark. 117, 627 S.W.2d 552 (1982).

The first element of the neutral-principles approach is to review the language of the deeds. Here, the language of the deeds indicates that the local trustees of the Palmetto church hold tide to the property. As previously outlined, on September 21, 1949, M.L. and Cora Dixon conveyed tide to Tract A by warranty deed to Cumberland Presbyterian Church •— Ewing Presbytery, the former Arkansas Cumberland, and on July 2, 1968, Arkansas Cumberland deeded it back to the trustees of Palmetto. The deed for Tract A contains the following language:

THAT WE, Clyde Kinslow, Carleton Bowden, Ray McSpadden, as Trustees for Cumberland Presbyterian Church Ewing-Barrow Presbytery (formerly Ewing Presbytery), GRANTORS, for and in consideration of the sum of one and No/100 dollars ($1.00) in hand paid by Bobby Gene Jones, Carrol Norris, Arvil Hudson, Glen Bond, Sr., Kenneth Norris, Kurt Richter as Trustees for the Palmetto Cumberland Presbyterian Church, GRANTEES, the receipt of which is hereby acknowledged, hereby grant, bargain, sell and convey unto the said GRANTEES, and unto their successors and assigns forever, the following land lying in Pope County, Arkansas, ...[.]
To have and to hold the same unto the said GRANTEES, and unto their successors and assigns forever, with all appurtenances thereunto belonging.
And we hereby covenant with said GRANTEES that we will forever warrant and defend the title to the said lands against all claims whatever.

The trial court heard testimony from Carleton Bowden, one of the Arkansas Cumberland trustees who was named in the 1968 Cumberland conveyance, and ruled that “[t]he testimony of Carlton Bowden was compelling in that he stated that the intent of the parent church in deeding the one acre to Palmetto was to give full title with no encumbrances.” Mr. Bowden testified:

What happened in 1968 was that the Palmetto congregation requested they be given a deed by the Presbytery to the church property, the Presbytery considered the request, granted it, instructed the Trustees of Ewing-Burrow Presbytery to give a deed to the Palmetto Church. ... In my opinion, the Trustees had been deeded to the congregation. . . . My opinion as to why the Cumberland Presbyterian Church is trying to back out of the 1968 Warranty Deed or why they want their property back is two fold. I think the Presbytery desires to retain the property and are reluctant to allow a precedent to be set which might cause other small churches to take similar actionf.]

The warranty deed concerning Tract B contains similar language. The deed for Tract B conveys tide from Cora Dixon to Bobby Gene Jones, Carrol Norris, Arvil Hudson, Glen Bond, Sr., Kenneth Norris, and Kurt Richter as trustees for Palmetto as grantees, “[t]o have and to hold the same unto the same GRANTEES, and unto their successors and assigns forever, with all appurtenances thereunto belonging.” Later, on February 28, 1977, W.M. and Bernetta Kinslow conveyed title for Tract C to the same individuals, who were listed as grantees. The language of the deed for Tract C is identical to the Tract B deed.

In our review of the language of the deeds, we note that nothing in the language of the deeds reflects that the Palmetto property was held in trust for the Arkansas Cumberland or the National Church. The language of the deeds vests tide and control over the property to the named Palmetto trustees. Moreover, Arkansas Cumberland and the National Church did not contribute to the acquisition of the property, and the local Palmetto congregation exercised complete control over the property.

With regard to the second and third elements of the neutral-principles approach approved by the Supreme Court, we note that there is not a local church charter in the record before us, and neither party claims that any state statute creates a trust in the property.

We next consider the National Church constitution in effect at the time of the conveyances. The sections of the church constitutions do not contain any language expressly creating a trust in church property in favor of the National Church. The Cumberland Presbyterian Digest of 1957 states:

11. Tide to Church Property
* * *
As a rule, the local church is an unincorporated association, so that it cannot hold tide to property in its own name. Consequendy, it is necessary that title to property of an unincorporated church be taken in the name of Trustees. . . . The local church may have the deed to its property made to its Ruling Elders and their successors in office as Trustees for the use and benefit of the local church. Or the local church may, if it prefers, elect Trustees for the purpose of taking title to church property.
* * *
Since the opinion of the United States Supreme Court in the case of Watson vs. Jones, 13 Wallace 679, decided April 15, 1872, it has been generally held by the Courts of the several states that any property conveyed for the use and benefit of a local church of a given faith is held in trust for the congregation or the denomination adhering to that faith, so that in the event of a split in a local congregation a minority adhering to the original faith may hold the property against the majority.
In case the local congregation dissolves or ceases to exist the property still belongs beneficially in trust to the people of the faith for which the conveyance was originally made. In such a situation there may be no Trustee in existence to preserve or protect the property. Under these circumstances it has been the impression in our denomination that the title in some way is transferred to the Presbytery in which the property is situated. As a matter of civil law this is not strictly true. While the duty and responsibility of looking after the property may properly devolve upon the Presbytery, the, title does not and cannot automatically vest in the Presbytery. The Presbytery may take the legal steps for the protection, transfer or sale of the property as the best interest of the denomination indicates.

(Emphasis added.)

The supplement to the 1957 digest, which includes the actions of the 1963 General Assembly, contains the following provisions:

11. A. Church Property Should Be Deeded to the Local Presbytery.
B. We further recommend that the following additional provisions be adopted regarding the legal steps to be taken by presbyteries for the protection, transfer, or sale of church property:
(1) Church property should be deeded to the trustees of the local presbytery for the benefit and use of the local church, which local trustees will be in complete charge so long as the church remains organized.
(2) In case the local church should become disorganized through the death or removal of the officers, the presbytery should appoint some of the remaining local members of the congregation a Board of Trustees for the preservation, protections, transfer or sale of the property.

This language is also found in the 1975 edition of the Cumberland Presbyterian Digest, the governing church law at the time of the February 28, 1977, conveyance of Tract C from the Kinslow family to the Palmetto trustees.

Appellants argue that the church constitution, amended in 1984, thereafter imposes a trust in favor of the National Church upon property previously held by the local congregations. That amendment provides:

3.32 The Cumberland Presbyterian Church is a connectional church and all lower judicatories of the church to-wit: synod, presbytery, and the particular churches are parts of that body and therefore all property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Cumberland Presbyterian Church, whether legal tide is lodged in a corporation, a trustee, or trustees, or an unincorporated association, and whether the property is used in programs of the particular church or of a more inclusive judicatory or retained for the production of income, and whether or not the deed to the property so states, is held in trust nevertheless for the use and benefit of the Cumberland Presbyterian Church.

Appellants’ argument is misplaced. Appellants contend that by adoption of the 1984 amendment to the National Church constitution, a trust in favor of the National Church was imposed upon property belonging to the trustees of the Palmetto church. We again note that Tract A was conveyed in 1968 by Arkansas Cumberland to the local Palmetto church without any reservation of tide or creation of a trust in favor of Arkansas Cumberland or the National Church. Appellants do not cite any cases that allow a grantor to impose a trust upon property previously conveyed without the retention of a trust.

Although the neutral-principles approach to the resolution of property disputes includes consideration of any church constitutions under Jones, supra, it is appropriate to first consider the provision the church constitution in place at the time of the 1968 and 1977 conveyances. We have long held that parties to a conveyance have a right to rely upon the law as it was at that time. See Sides v. Beene, 327 Ark. 401, 938 S.W.2d 840 (1997); Abrego v. United Peoples Fed. Sav. & Loan, 281 Ark. 308, 664 S.W.2d 858 (1984); Warren v. Warren, 273 Ark. 528, 623 S.W.2d 813 (1981).

Under the National Church constitutions at the time of the 1968 and 1977 conveyances, the church property “should be deeded to the trustees of the local presbytery for the benefit and use of the local church, which local trustees will be in complete charge so long as the church remains organized.” Both the 1963 and 1975 editions of the National Church constitutions, which govern the conveyances of the 1968 and 1977 conveyances, respectively, support the conclusion that exclusive title and control over local church property is vested in the Palmetto trustees. Based upon the application of our neutral-principles approach and our de novo review, we hold that the trial court did not err in quieting title to the property in the trustees of the Palmetto church.

Affirmed.

Brown, Imber, and Hannah, JJ„ dissent.

ANNABELLE Clinton Imber, Justice,

dissenting. The majorELLE opinion in this case faüs to give effect to the Constitution of the Cumberland Presbyterian Church, as amended in 1984, which expressly provides that all property held by local churches is held in trust for the Cumberland Presbyterian Church:

3.32 The Cumberland Presbyterian Church is a connectional church and all lower judicatories of the church to wit: synod, presbytery, and the particular churches are parts of that body and therefore all property held by or for a particular church, a presbytery, a synod, the General Assembly, or the Cumberland Presbyterian Church, whether legal title is lodged in a corporation, a trustee or trustees, or an unincorporated association, and whether the property is used in programs of the particular church or of a more inclusive judicatory or retained for the production of income, and whether or not the deed to the property so states, is held in trust nevertheless for the use and benefit of the Cumberland Presbyterian Church.

In Jones v. Wolf, 443 U.S. 595 (1979), the United States Supreme Court sanctioned the use of such an express trust provision in a hierarchical or connectional church’s constitution to resolve church property disputes, if the trust provision becomes effective before the dispute arises:

Under the neutral-principles approach, the outcome of a church property dispute is not foreordained. At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deeds or the corporate charter to include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps will be minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form.

Jones v. Wolf, 443 U.S. at 606 (emphasis added.) The chancellor in this case was bound to give effect to the Constitution of the Cumberland Presbyterian Church, as amended in 1984, because it was in effect for several years before the dispute between the parties arose.

Such a holding is also supported by decisions from other jurisdictions. In Bethany Independent Church v. Stewart, 645 So.2d 715 (La. Ct. App. 1994), a local affiliate of the Cumberland Presbyterian Church sought to disassociate itself from the general church. In doing so, the local congregation formed a corporation called the Bethany Independent Church and transferred all of the local church’s assets to the new corporation, including three tracts of real estate. The general church intervened in the dispute and the trial court resolved the issue in favor of the local church. The Louisiana Court of Appeals reversed and relied solely on the 1984 amendments to the church constitution regarding ownership of church property; that is, the very same provisions at issue here. The court specifically noted that the local church had subjected itself to the rules, governmental structure, and doctrine of the general church prior to the dispute, which arose in 1992. Id. at 720. The court held: “Based on an examination of the documents in purely secular terms, we conclude it was the intention of the parties, agreed upon before the dispute arose, to be bound by the provisions of the [church’s constitution, as amended in 1984], including those provisions relative to property.” Id. at 722 (emphasis added). Like the situation currendy before this court, the deeds to the property in Bethany Independent Church v. Stewart were executed in 1872, 1955, and 1960, long before the 1984 amendments to the church constitution. Id. However, the court clearly looked to the constitution in effect when the dispute between the parties arose, instead of the provisions in effect at the time the deeds were executed. Id. See also, Shirley v. Christian Episcopal Methodist Church, 748 So. 2d 672 (Miss. 2000) (looking to the hierarchical church’s 1994 Book of Discipline to resolve a dispute regarding property deeded to the trustees of the local church in 1947); Cumberland Presbytery of the Synod of the Mid-West of the Cumberland Presbyterian Church v. Branstetter, 824 S.W.2d 417 (Ky. 1992) (the terms of the Constitution of the Cumberland Presbyterian Church, as amended in 1984, governed at the time the property dispute arose in 1987, even though title to the property was held by a local church that had been in existence since 1911); Fonken v. Community Church of Kamrar, 339 N.W.2d 810 (Iowa 1983) (looking to church documents in effect at the time the schism within the local church occurred in 1980 even though the property was originally acquired in 1881); Presbytery of Elijah Parish Lovejoy v. Jaeggi, 682 S.W.2d 465 (Mo. 1984) (looking to the constitution of the general church as it existed on the date the local church terminated its association with the general ,church); and Carnes v. Smith, 222 S.E.2d 322 (Ga. 1976) (the express trust provisions of the United Methodist Church’s Book of Discipline, which provides that the church property is held by local trustees for the benefit of the general church, governed in a dispute where property was deeded in 1852 to the “trustees of the Methodist Episcopal Church [UMC’s predecessor] at Mount Pleasant Academy.”).

Some jurisdictions have established a rule applicable in situations such as this, whereby a trust provision in a general church’s constitution is given effect even though the trust provision was not in place at the time the disputed property was acquired, “so long as a court finds that the trust provisions were declaratory of existing church policy.” Trustees of the Diocese of Albany v. Trinity Episcopal Church of Gloversville, 250 A.D.2d 282, 288 (N.Y. App. Div.1999) (citing Rector, Wardens & Vestrymen of Trinity-St. Michael’s Parish, Inc. v. Episcopal Church in Diocese of Connecticut, 620 A.2d 1280, 1292-1293 (Conn. 1993)). Here, the trust provision added to the Cumberland Presbyterian Church’s Constitution in 1984 was clearly declaratory of existing church policy. The New Cumberland Presbyterian Digest of 1920. stated, in relevant part:

Resolved, that it is the sense of this Assembly that the rightful ownership of and title to church property belonging to a disorganized congregation, or of abandoned church property is and should be in the Presbytery in whose bounds it is located, provided there are no provisions in the deed of conveyance directing what shall become of the property when it ceases to be used for church purposes.

The Cumberland Presbyterian Digests of 1957 and 1975 provided, in relevant part:

In case the local congregation dissolves or ceases to exist, the property still belongs beneficially in trust to the people of the faith [the Cumberland Presbyterian Church] for which the conveyance was originally made. ... Under these circumstances it has been the impression in our denomination that the title in some way is transferred to the Presbytery in which the property is situated.

Therefore, at all times prior to the 1984 amendments, church policy stated that the property of a disorganized or dissolved local congregation came under control of the Presbytery or general church. The 1984 amendments did nothing more than solidify existing church policy. Accordingly, the trust provision added to the church constitution in 1984 should be given full effect in favor of the Cumberland Presbyterian Church.

Furthermore, the language providing for a trust in favor of the general church was added to the constitution in 1984 by a three-fourths vote of all the member churches. Palmetto Cumberland Presbyterian Church (Palmetto) was a member of the general church and the Arkansas Presbytery at that time and did not formally withdraw its membership until 1995, eleven years later. Notwithstanding the fact that Palmetto voted against the 1984 amendment, it continued to contribute money and submit annual reports to the Arkansas Presbytery until at least 1991. Palmetto also continued to send delegates to meetings of the Arkansas Presbytery after 1984. While Palmetto may not have agreed with the 1984 amendment to the constitution, it continued to operate as a member of the general church for several years after the amendment was adopted. Thus, Palmetto acquiesced in the constitutional amendment and should be bound by it. The reasoning of the Indiana Court of Appeals in United Methodist Church v. St. Louis Crossing Independent Methodist Church, 276 N.E.2d 916 (1971), where it considered a similar church property dispute, is particularly apt in this case:

A local church, if it desires to remain independent of the influence of a parent church body, must maintain this independence in the important aspects of its operation— e.g., polity, name, finances. It cannot, as here, enter a binding relationship with a parent church which has provisions of implied trust in its constitution, by-laws, rules, and other documents pertaining to the control of property, yet deny the existence of such relationship. ... A local church cannot prosper by the benefits afforded by the parent, participate in the functioning of that body, yet successfully disclaim affiliation when the parent acts to the apparent disadvantage of the local, so as to shield from equitable or contractual obligation the valuable property acquired by the local church either before or during such affiliation.

The situation presented here, where the local church continued to operate as a member of the general church for several years after the amendment containing the'trust provision was adopted, is readily distinguishable from cases in other jurisdictions in which recent amendments to the general church’s constitution were deemed inapplicable. In those cases, the local church withdrew from the general church before the amendment to the general church’s constitution was adopted. See Presbytery of Beaver-Butler of the United Presbyterian Church in the United States of America v. Middlesex Presbyterian Church, 489 A.2d 1317 (Pa. 1985) (where the general church’s constitution was amended to provide for an express trust in favor of the general church only after the local church voted to disaffiliate); York v. First Presbyterian Church of Anna, 474 N.E.2d 716 (Ill. App. Ct. 1984) (where the local church withdrew from the general church before adoption of an amendment to the general church’s constitution providing for an express trust in favor of the general church); Foss v. Dykstra, 342 N.W.2d 220 (S.D. 1983) (where the general church’s Book of Order did not contain a trust provision on the date that the local church voted to withdraw from the general church).

Finally, the deeds granting all three parcels of property to the trustees of the local church name the grantees “as Trustees for the Palmetto Cumberland Presbyterian Church.” The Palmetto Cumberland Presbyterian Church, however, no longer exists. Therefore, it is impossible for the deeds to control because the local church for which the property is supposedly held in trust has been dissolved. Under these circumstances, section 3.34 of the church’s constitution provides that the property “shall be held, used, and applied for such uses, purposes, and trusts as the presbytery ... may direct[.]”

For all these reasons, I must conclude that the church property in dispute is held in trust for the use and benefit of the Cumberland Presbyterian Church pursuant to section 3.32 of the church constitution. The trial court erred when it failed to give effect to the unambiguous language of the Constitution of the Cumberland Presbyterian Church, as amended in 1984.

BROWN and Hannah, JJ., join in this dissent.

       The following sections in the Cumberland Presbyterian Church’s Constitution, as amended in 1984, also pertain to property:
      3.30 Of Property
      This section is declaratory of principles to which the Cumberland Presbyterian Church/Second Cumberland Presbyterian Church and their antecedent church bodies have adhered from the inception of the presbyterian form of church government.
      * * *
      3.31 The provisions of church government as set forth in the Constitution, Rules of Discipline, and Rules of Order prescribing the manner in which decisions are made, reviewed, and corrected within this church are applicable to all matters pertaining to property.
      * * *
      3.33 Whenever property of, or held for, a particular church of the Cumberland Presbyterian Church, ceases to be used by the church, as a particular church of the Cumberland Presbyterian Church in accordance with this Constitution, such property shall be held, used, applied, transferred, or sold as provided by the presbytery in which that particular church is located.
      3.34 Whenever a particular church is formally dissolved by the presbytery, or has become extinct by reason of dispersal of its members, the abandonment of its work, or other cause, such property as it may have shall be held, used, and applied for such uses, purposes, and trusts as the presbytery in which said particular church is located may direct, limit, and appoint, or such property may be sold or disposed of as the presbytery may direct, in conformity with the Constitution of the Cumberland Presbyterian Church.
      3.35 A particular church shall not sell, nor lease its real property used for purposes of worship, nurture or ministry, without the written permission of the presbytery in which the particular church is located, transmitted through the session of the particular church.

       The church property dispute in Jones v. Wolf, supra, involved a local church affiliated with a similar hierarchical or connectional church organization, the Presbyterian Church of the United States.

       In 1995, the Arkansas Presbytery of the Cumberland Presbyterian Church suspended the session of the Palmetto Cumberland Presbyterian Church and appointed a commission to rule the church. In 1997, the Arkansas Presbytery adopted the commission’s recommendation that the Palmetto Cumberland Presbyterian Church be dissolved and that its members be attached to another congregation.


author: PER CURIAM.

text:
    IN RE: Carl Fredrick MOYER
    01-14
    40 S.W.3d 314
    Supreme Court of Arkansas
    Opinion delivered March 29, 2001

      Lynn Williams, for petitioner.

      Carl Fredrick Moyer, pro se.
   PER CURIAM.

This is an original action brought by the Supreme Court Committee on Professional Conduct. The underlying facts of this case are set out in In Re: Moyer, 343 Ark. 768, 37 S.W.3d 618 (2001) (per curiam). In that opinion, we granted the Committee’s petition and ordered Mr. Moyer to appear before this court on March 8, 2001, and show cause why he should not be held in contempt. Mr. Moyer subsequently notified the Supreme Court Clerk of a scheduling conflict and asked for a continuance of the hearing. This court granted the continuance and instructed Mr. Moyer to appear on March 22, 2001.

Attempts were made by the Arkansas State Police to serve Mr. Moyer with notice of the March 22 hearing, but they were unsuccessful. Apparently, Mr. Moyer had moved from his last-known address and had disconnected his telephone. Because Mr. Moyer was not properly served with notice of the last hearing, we hereby issue a new order that he appear before this court at 9:00 a.m., on April 5, 2001, for consideration of the relief requested by the Committee, including why he should not be held in contempt.

Pursuant to Section 5E(1) of the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, the attorney’s mailing address on record with this court’s clerk constitutes the address for service by mail. See Hogue v. Neal, 340 Ark. 250, 12 S.W.3d 186 (2000) (per curiam). It is the attorney’s responsibility to inform the clerk’s office, in writing and within a reasonable time, of any change of address. Id. We thus direct that service be attempted by mail, pursuant to Section 5E(2)(a), to Mr. Moyer’s mailing address that is on record with this court’s clerk.

It is so ordered.


text:
    Theodis KELLY v. STATE of Arkansas
    CR 01-00278
    39 S.W.3d 447
    Supreme Court of Arkansas
    Opinion delivered March 29, 2001

      Don Ethery, for appellant.
    No response.
   PER CURIAM.

Don Ethery, a state-salaried, part-time public defender for the First Judicial District, was appointed by the trial court to represent appellant Theodis Kelly, an indigent defendant, in this criminal case. Following a jury trial that concluded on December 7, 2000, Kelly was convicted of first-degree murder and sentenced to fifty-five years in the Arkansas Department of Correction! A notice of appeal from the judgment of conviction was timely filed and a partial record has been lodged with our clerk.

Mr. Ethery now asks this court to relieve him as counsel for Kelly in this criminal appeal. As a state-salaried, part-time public defender for the First Judicial District, Mr. Ethery is ineligible for compensation by this court for work performed in the appeal of this matter pursuant to our opinion in Rushing v. State, 340 Ark. 84, 8 S.W.3d 489 (2000). In Tester v. State, 341 Ark. 281, 16 S.W.3d 227 (2000), we relieved appellant’s court-appointed public defender and appointed new counsel on appeal under similar circumstances. See also, Craft v. State, 342 Ark. 57, 26 S.W.3d 584 (2000); McFerrin v. State, 342 Ark.61, 26 S.W.3d 429 (2000); Bolton v. State, 342 Ark. 55, 26 S.W.3d 783 (2000). We grant Mr. Ethery’s motion to be relieved for good cause shown. Mr. Robert L. Herzfeld will be substituted as attorney for appellant Theodis Kelly in this matter.


text:
    Steve SANDERS v. STATE of Arkansas
    CR 01-262
    40 S.W.3d 315
    Supreme Court of Arkansas
    Opinion delivered March 29, 2001

      Dale W. Finley, for appellant.
    No response.
   PER CURIAM.

Appellant Steve Sanders, by and through his attorney, Dale W Finley, has filed a motion for rule on the clerk. The motion reflects that the judgment of conviction was filed on September 14, 2000. Counsel gave timely notice of appeal via facsimile that was accepted by the circuit clerk’s office and file-marked on October 10, 2000. The record on appeal was due to be filed on January 8, 2001, but it was not tendered until January 12, 2001. Counsel admits responsibility for tendering the record late.

We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. Jones v. State, 338 Ark. 29, 992 S.W.2d 85 (1999) (per curiam) (citing Tarry v. State, 288 Ark. 172, 702 S.W.2d 804 (1986) (per curiam)).

The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. See In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).