ROBERT J. GLADWIN, Chief Judge.
Appellant Priscilla Ponder appeals the January 26, 2015 orders of the Union County Circuit Court,
On December 13, 2013, the Department of Human Services (DHS) took a seventy-two-hour hold on appellant's children after the death of a sibling.
The circuit court found that it was not in the children's best interest to return custody to appellant and cited several reasons for that finding. Visitation was continued as previously ordered, prior orders not in conflict remained in effect, and the case was set for a review hearing. At the
The January 9, 2015 hearing — from which the orders now appealed were handed down — included no testimony, evidence, coherent arguments of counsel, or findings from the circuit court. But the orders appealed from specifically state,
In appellant's brief, the only proceeding abstracted was the January 9, 2015 review hearing from which the orders are appealed originated pursuant to Rule 6-9 of the Arkansas Supreme Court Rules (2015), which states in pertinent part,
Although described as a review hearing, the ten-page abstract and corresponding pages in the record indicate that other than counsel for the parties discussing the purpose of the hearing, the only matter dealt with was appellant's trial counsel basically conducting an indigency inquiry for the purpose of appeal of the December 1, 2014 permanency-planning hearing. On June 17, 2015, this court granted appellant's motion to strike the exhibits and transcript from the December 1, 2014 permanency-planning hearing, which were not reintroduced at the January 9, 2015 review hearing and should not have been included in the appellate record filed before this court.
A dependent-neglected child's custody, when the preponderance of the evidence shows that it is in their best interest, can be transferred to a relative. Ark. Code Ann. §§ 9-27-325(h)(2)(B), 9-27-334(a)(2)(A), 9-27-335(d) (Repl. 2009 & Supp. 2013). The appellate court on appeal will not reverse the circuit court's best-interest finding unless it is clearly erroneous. See Penn v. Ark. Dep't of Human Servs., 2013 Ark.App. 327, 2013 WL 2112229.
This court reviews findings in dependency-neglect proceedings de novo but will not reverse the circuit court's findings unless they are clearly erroneous. Porter v. Ark. Dep't of Human Servs., 374 Ark. 177, 286 S.W.3d 686 (2008). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Seago v. Ark. Dep't of Human Servs., 2011 Ark. 184, 380 S.W.3d 894. While disputed facts and determinations of credibility are within the province of the fact-finder, Miller v. Ark. Dep't of Human Servs., 86 Ark.App. 172, 167 S.W.3d 153 (2004), a circuit court's conclusion on a matter of law is given no deference on appeal. Linder v. Ark. Midstream Gas Servs. Corp., 2010 Ark. 117, 362 S.W.3d 889.
Under Arkansas Code Annotated section 9-27-337 (Supp. 2013), the court shall review
Ark.Code Ann. §§ 9-27-337(a)(1)(A), (e)(1)(A), (B)(i), (C)(iv).
The orders appealed from specifically indicate that the case was thoroughly reviewed by the court on January 9, 2015, and pronounce that the circuit court found that it was in the children's best interest to grant permanent custody to their respective custodians, that DHS was relieved of providing services, and that no further review hearings would be required. But our review of the record confirms that there were no findings made by the circuit court based on evidence presented at the review hearing regarding the best interest of the children. Whether a change in custody is in the best interest of a child is a question of fact, not a matter of law, and as such, the best-interest criterion is susceptible of, and must be attended by, some proof. See Calhoun v. Calhoun, 84 Ark.App. 158, 138 S.W.3d 689 (2003). This court has cautioned DHS not to be "cavalier" in producing evidence given that DHS has the burden of proof at trial. Dean v. Ark. Dep't of Human Servs., 2009 Ark.App. 198, at ¶ 3, 299 S.W.3d 537, 539. Factors offered in evidence enable the circuit court to make its statutorily-mandated findings, such as "best interest."
We hold that the circuit court committed reversible error by making findings that granted custody in the orders appealed from despite the complete lack of evidence presented for the circuit court to consider at the January 9, 2015 review hearing. Accordingly, we reverse and remand for further proceedings consistent with this opinion.
Reversed and remanded.
ABRAMSON, GLOVER, HIXSON, HOOFMAN, and BROWN, JJ., agree.