Ark. Code Ann. » Title 9 Chapter 27
Arkansas Code Annotated

Ark. Code Ann. § 9-27-315 (2020)

Probable cause hearing

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      1. Following the issuance of an emergency order, the circuit court shall hold a probable cause hearing within five (5) business days of the issuance of the ex parte order to determine if probable cause to issue the emergency order continues to exist.
        1. The hearing shall be limited to the purpose of determining whether probable cause existed to protect the juvenile and to determine whether probable cause still exists to protect the juvenile.
        2. However, the issues as to custody and delivery of services may be considered by the court and appropriate orders for custody and delivery of services entered by the court.
        3. If the defendant stipulates that probable cause exists, the only evidence that is presented at the probable cause hearing shall be:
          1. Evidence pertaining to visitation; and
          2. Evidence pertaining to services delivered to the family.
        4. A parent shall not be compelled to testify under any circumstances.
        5. For the sole purpose of the probable cause hearing, the stipulation of a parent that probable cause exists shall also serve as a stipulation to the introduction of the affidavit of the plaintiff.
      1. All other issues, with the exception of custody and services, shall be reserved for hearing by the court at the adjudication hearing, which shall be a separate hearing conducted subsequent to the probable cause hearing.
      2. By agreement of the parties and with the court's approval, the adjudication hearing may be conducted at any time after the probable cause hearing, subject to § 9-27-327(a)(2).
  2. The petitioner shall have the burden of proof by a preponderance of evidence that probable cause exists for continuation of the emergency order.
  3. If the court determines that the juvenile can safely be returned to his or her home pending adjudication and it is in the best interest of the juvenile, the court shall so order.
    1. At the probable cause hearing, the court shall set the time and date of the adjudication hearing.
    2. A written order shall be filed by the court or by a party or party's attorney, as designated by the court, within thirty (30) days of the date of the hearing or prior to the next hearing, whichever is sooner.
  5. All probable cause hearings are miscellaneous proceedings as defined in Rule 1101(b)(3) of the Arkansas Rules of Evidence, and the rules of evidence, including, but not limited to, the hearsay rule, Rule 802 of the Arkansas Rules of Evidence, are not applicable.

History. Acts 1989, No. 273, § 14; 1993, No. 1227, § 3; 1995, No. 533, § 5; 1995, No. 1337, § 2; 1997, No. 1227, § 3; 1999, No. 1340, § 33; 2003, No. 1319, § 11; 2005, No. 1990, § 7; 2013, No. 1055, § 8; 2017, No. 1111, § 1; 2019, No. 559, § 1.

Amendments. The 2005 amendment inserted (d)(2); redesignated former (d)(2) as present (d)(3).

The 2013 amendment repealed (d)(2).

The 2017 amendment added (a)(1)(B)(iii) and (iv).

The 2019 amendment substituted “orders for custody and delivery of services entered by the court” for “orders for that entered by the court” in (a)(1)(B)(ii); rewrote (a)(1)(B)(iii); rewrote (a)(1)(B)(iv); and added (a)(1)(B)(v).

Case Notes

In General.

Orders based upon emergency hearings pursuant to this section are not final, appealable orders. Dover v. Ark. Dep't of Human Servs., 62 Ark. App. 37, 968 S.W.2d 635 (1998).

Adjudication Hearing.

While an adjudication hearing is generally necessary in a dependency-neglect case in order for the circuit court to consider and determine all of the issues involved, this section does not require the circuit court to hold such a hearing; therefore, in a case where a child from Oklahoma was left unattended in a car in Arkansas by his mother, a trial court did not err by placing the child with his paternal grandparents in Oklahoma at a probable cause hearing since there were no additional issues to consider. Moreover, the trial court was permitted to grant permanent custody at a probable cause hearing under subdivision (a)(1)(B) of this section. Ark. Dep't of Health & Human Servs. v. Jones, 97 Ark. App. 267, 248 S.W.3d 507 (2007).

Trial court erred when it failed to conduct a scheduled adjudication hearing and take evidence on the issue of whether a mother's children were dependent-neglected and whether the assessments, evaluations, and services provided by the Department of Human Services were effective. Because there was no custody order in place, the trial court's order closing the case had the effect of returning the children to the legal custody of their mother without first addressing the need to protect the juveniles from further harm. Ark. Dep't of Human Servs. v. Veasley, 2016 Ark. App. 175 (2016).

Due Process.

Parents sought to hold the social workers individually liable for failing to provide them with a prompt post-deprivation hearing, but the statutory authority and duty to schedule and conduct a hearing was placed in the circuit court. Neither social worker had the authority to schedule such a hearing. Webb v. Smith, No. 4:17CV00660 JLH, 2018 U.S. Dist. LEXIS 118406 (E.D. Ark. June 20, 2018), aff'd in part, rev'd in part on other grounds, 936 F.3d 808 (8th Cir. 2019).

Parents' argument reduced to a form of strict liability: the post-deprivation hearing was not held promptly, so the social workers who were responsible for custody of the children must be held individually liable whether they were at fault or not. The court found no support for the proposition that social workers can be held individually liable for alleged constitutional violations for which they were not personally responsible. Webb v. Smith, No. 4:17CV00660 JLH, 2018 U.S. Dist. LEXIS 118406 (E.D. Ark. June 20, 2018), aff'd in part, rev'd in part on other grounds, 936 F.3d 808 (8th Cir. 2019).

Proof.

Where the state, in its capacity as public guardian of infants, is seeking an order to temporarily care for neglected or dependent children, the preponderance of the evidence standard is proper. Robins v. Ark. Soc. Servs., 273 Ark. 241, 617 S.W.2d 857 (1981), superseded by statute as stated in, Nance v. Ark. Dep't of Human Servs., 316 Ark. 43, 870 S.W.2d 721 (1994) (decision under prior law).

Timeliness of Order.

Circuit court's untimely orders of probable cause and adjudication, which were both entered beyond the statutorily prescribed 30 days, did not warrant reversal or any other sanction. Westbrook v. Ark. Dep't of Human Servs., 2019 Ark. App. 352, 584 S.W.3d 258 (2019).

Cited: Ark. Dep't of Human Servs. v. Dearman, 40 Ark. App. 63, 842 S.W.2d 449 (1992).

Notes of Decisions
Cited in 19 cases (2 in the last 5 years), 1992–2021 · leading case: Carroll v. Arkansas Dep't of Human Servs., 148 S.W.3d 780 (Ark. Ct. App. 2004).
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Carroll v. Arkansas Dep't of Human Servs., 148 S.W.3d 780 (Ark. Ct. App. 2004). · cites it 12× “” Ark. Code Ann. § 9-27-315 (B)(i) (Repl. 2002 & Supp.”
Arkansas Dep't of Health & Human Servs. v. Jones, 248 S.W.3d 507 (Ark. Ct. App. 2007). · cites it 14× “DHHS claims that the issues needing consideration include whether permanent custody was in the child’s best interest, visitation, child support, and whether the parents should have been provided reunification services. JTH’s father, Jacob Hines, responds, arguing that there was…”
Hathcock v. Arkansas Dep't of Human Servs., 69 S.W.3d 6 (Ark. 2002). · cites it 18× “The trial court denied Hathcock’s request for continuance, finding that (1) any criminal charges filed against Hathcock were independent of the court’s adjudication holding on the issues of dependency/neglect, (2) any adjudication order would be based on relevant information…”
Walters v. Arkansas Dep't of Human Servs., 72 S.W.3d 533 (Ark. Ct. App. 2002). · cites it 14× “Ark. Code Ann. § 9-27-315 (a)(l)(B) (Repl.”
Arkansas Dep't of Human Servs. v. Collier, 95 S.W.3d 772 (Ark. 2003). · cites it 2× “See Ark. Code Ann. § 9-27-315 (a)(1)(C) (Repl.”
Arkansas Dep't of Human Servs. v. Dearman, 842 S.W.2d 449 (Ark. Ct. App. 1992). · cites it 4× “Appellant also argues juvenile court is required by Ark. Code Ann. § 9-27-315 (a) (1987) to hold a probable cause hearing.”
Katelyn Webb v. Chelsea Smith, 936 F.3d 808 (8th Cir. 2019). “See Ark. Code Ann. § 9-27-315 (a)(1)(A). We therefore do not think Hayes applicable.”
Neves Da Rocha v. Arkansas Dep't of Human Servs., 219 S.W.3d 660 (Ark. Ct. App. 2005). · cites it 2× “See Ark. Code Ann. § 9-27-315 (d)(2) (Supp. 2005).”
Turner v. Ark. Dep't of Human Servs., 539 S.W.3d 635 (Ark. Ct. App. 2018). “(4)(A) The dependency-neglect adjudication hearing shall be held within thirty *637 (30) days after the probable cause hearing under § 9-27-315. (B) On a motion of the court or any party, the court may continue the adjudication hearing up to sixty (60) days after the removal for…”
Leinen v. Arkansas Dep't of Human Servs., 886 S.W.2d 895 (Ark. Ct. App. 1994). · cites it 2× “As required by Ark. Code Ann. § 9-27-315 (a) (Repl. 1991), a hearing was scheduled for January 11th.”
Amber Westbrook v. Arkansas Dep't of Human Servs. & Minor Child, 2019 Ark. App. 352. · cites it 2× “In addition, counsel has addressed several objections made by appellant’s counsel on which the court did not rule.”
Emily Simmons v. Arkansas Dep't of Human Servs. & Minor Child, 2021 Ark. App. 233, 638 S.W.3d 286. · cites it 2× “” 1 We note that the proper terminology pursuant to Arkansas Code Annotated section 9-27-315 (Repl. 2020) is that a defendant may “stipulate” that probable cause exists.”
Show all 19 citing cases →
Ark. Code Ann. § 9-27-315(B)(i): 1 case
Carroll v. Arkansas Dep't of Human Servs., 148 S.W.3d 780 (Ark. Ct. App. 2004). “” Ark. Code Ann. § 9-27-315 (B)(i) (Repl. 2002 & Supp.”
Ark. Code Ann. § 9-27-315(a): 1 case
Arkansas Dep't of Human Servs. v. Dearman, 842 S.W.2d 449 (Ark. Ct. App. 1992). “Appellant also argues juvenile court is required by Ark. Code Ann. § 9-27-315 (a) (1987) to hold a probable cause hearing.”
Ark. Code Ann. § 9-27-315(d)(2): 1 case
Hathcock v. Arkansas Dep't of Human Servs., 69 S.W.3d 6 (Ark. 2002). “The trial court denied Hathcock’s request for continuance, finding that (1) any criminal charges filed against Hathcock were independent of the court’s adjudication holding on the issues of dependency/neglect, (2) any adjudication order would be based on relevant information…”
Ark. Code Ann. § 9-27-315(e): 1 case
Carroll v. Arkansas Dep't of Human Servs., 148 S.W.3d 780 (Ark. Ct. App. 2004). “” Ark. Code Ann. § 9-27-315 (B)(i) (Repl. 2002 & Supp.”
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