APPEAL FROM THE WASHINGTON COUNTY CIRCUIT COURT [NO. JV-2015-10-3] HONORABLE STACEY ZIMMERMAN, JUDGE
Kezhaya Law PLLC, by: Matthew A. Kezhaya, for appellant Anita Taffner.
Jerald A. Sharum, County Legal Operations, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.
KAREN R. BAKER, ASSOCIATE JUSTICE.
This appeal stems from the termination of parental rights of appellant, Chris Taffner, and separate appellant, Anita Taffner, of their five adopted children. N.T., A.T., B.T., K.T., and J.T. Appellee, the Arkansas Department of Human Services (DHS), initiated dependency neglect proceedings and ultimately termination of parental rights proceedings.
Chris and Anita Taffner are the adoptive parents of five children who came to their home through foster-care services and were adopted in 2009 and 2011 respectively. On January 2, 2015, DHS removed the children from the home as a result of allegations that Chris had sexually abused one of his children. Also on January 2, 2015, Chris was arrested for sexual abuse. On January 5, 2015, DHS filed an emergency custody and dependency-neglect petition. On January 7, 2015, the circuit court entered a probable-cause order and declared both Chris and Anita indigent and appointed separate counsel for each. In the petition and supporting affidavit, DHS asserted that the children were dependent-neglected as a result of abandonment, abuse, sexual abuse, sexual exploitations, neglect or parental unfitness. Further, the supporting affidavit stated that DHS had received credible statements during an ongoing sexual-abuse investigation from one of the children that their father was the alleged offender and the children were in imminent danger if they remained in the home. Additionally, the affidavit stated that the investigation was initiated after a report was received at the child-abuse hotline that the adoptive father, Chris, was alleged to have sexually abused one of the children. Further, the affidavit stated that the adoptive mother, Anita, stated that she did not believe the children's statement and was "100% supportive of her husband, " and if it came down to choosing between her husband and her children, she would choose "[her] husband of course."
On February 18, 2015, the circuit court conducted an adjudication hearing. At the hearing, the parties agreed to the following stipulation of facts:
The parties agree to a finding of dependency-neglect as to B.T., A.T., K.T., N.T., and J.T., based upon the following stipulated facts: that the five children were previously in foster care and were adopted by Chris and Anita Taffner; that father, Chris Taffner, was arrested for rape and sexual assault in the second degree, three counts, in Washington County Criminal Case Number CR 2015-16-6; B.T. is named as one alleged victim in those proceedings; that the Arkansas State Police Crimes Against Children Division has found true against Chris Taffner with B.T. as victim for sexual contact, oral sex, and sexual penetration. That the criminal charges are pending and are currently set for trial on April 3rd, 2015. That mother, Anita Taffner, continues to live with Chris Taffner as his wife. Mother has articulated to DHS and to CACD that she believes and supports her husband, and that based upon the foregoing, the children cannot return to either parent at this time.
At the hearing, DHS brought witnesses to the adjudication hearing to prove its allegations, and following the circuit court's acceptance of the stipulation, requested that the witnesses be released. However, the circuit court retained the witnesses to take testimony to establish clear and convincing proof of aggravating circumstances. At the conclusion of the hearing, the circuit court announced its finding that Chris had sexually abused the children and that there was clear and convincing evidence of aggravated circumstances. Neither Chris nor Anita objected to this finding or appealed it. Also on February 18, 2015, the circuit court entered an order finding by clear and convincing evidence that the five children were dependent-neglected:
[A]fter considering evidence presented at this hearing, that these additional allegations . . . are true and correct. Specifically, . . . based on uncontroverted credible testimony . . . the court finds: B.T. and K.T. were subjected to AGGRAVATED CIRCUMSTANCES due to sexual abuse: B.T. and K.T. were sexually abused by Chris Taffner. The court makes this finding by clear and convincing evidence. Ms. Taffner, Mother, is not protective of the children.
On May 19, 2015, DHS filed a petition to terminate Chris and Anita's parental rights, citing as grounds the circuit court's finding that Chris had abused B.T. and K.T., that Anita had not protected the children, that she still remained in the home, and that she had refused to submit to a psychological evaluation. Anita responded that the adjudication hearing was not a "meaningful" hearing, it was in violation of her due-process rights, and she had not been afforded effective assistance of counsel. Anita also filed a motion requesting that the circuit judge recuse from the case because "this Court's conduct has raised a reasonable apprehension of bias." The circuit court denied this motion.
On June 29, 2015, Chris filed a pro se "Motion for a New Lawyer" in which he requested that the circuit court appoint him new counsel. In his motion, Chris argued that his counsel had not adequately represented him in the adjudication hearing, asserting that counsel was not prepared for the hearing, that counsel had not called witnesses or made any attempts to investigate the claims against him, and that counsel had not informed Chris of his right to appeal the order. On June 30, 2015, his appointed counsel filed a motion to withdraw as counsel, stating that she and Chris "have a significant difference in strategy and tactics to defend this matter." The circuit court granted counsel's motion to withdraw as counsel and appointed new counsel but did not make findings on Chris's ineffective- assistance-of-counsel allegations.
On August 14, 2015, the circuit court held a hearing on the petition to terminate parental rights. Prior to the hearing, Anita filed a "Motion for a Finding that the Adjudication Hearing was not a Meaningful Hearing" in which she again contended that the adjudication hearing was not meaningful, it violated her due-process rights, and her counsel was ineffective. The attorney ad lidem and DHS both objected to Anita's motion, and the circuit court stated that they would each have ten days based on the Rules of Civil Procedure to respond to the motion and would not rule on the motion at that the hearing. Following the hearing, the circuit court entered an order terminating Chris and Anita's parental rights. Additionally, the court denied Anita's motion on the adjudication hearing, finding that "the adjudication hearing was, in fact, a meaningful hearing, as both defendants were represented by counsel and had full opportunity for cross-examination of witnesses - an opportunity of which they did avail themselves." The court further recognized that the adjudication order had not been appealed. Chris and Anita both filed timely notices of appeal from the termination order.
From the termination order, Chris and Anita appealed to the court of appeals. On March 17, 2016, we accepted certification of this case. On appeal, Chris presents one issue: Chris was denied his right to effective assistance of counsel when his appointed counsel at the adjudication hearing, and the ineffectiveness of his appointed counsel, tainted the remainder of the dependency-neglect proceedings such that the termination of his parental rights was a foregone conclusion. On appeal, Anita presents three issues: (1) Anita was denied effective assistance of counsel; (2) the circuit court erred when it improperly refused to recuse itself; and (3) the circuit court erred when it deprived Anita of her Sixth Amendment right to confront witnesses.
I. Standard of Review
In cases where the issue is one of termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Trout v. Ark. Dep't of Human Servs., 359 Ark. 283, 197 S.W.3d 486 (2004); Ullom v. Ark. Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000). Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Id. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Crawford v. Ark. Dep't of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Parental rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. J.T. v. Ark. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). On appellate review, this court gives a high degree of deference to the trial court, which is in a far superior position to observe the parties before it. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Further, pursuant to Ark. Code Ann. § 9-27-341(b)(3) (Repl. 2015), an order terminating parental rights must be based upon clear and convincing evidence. See also Larscheid v. Ark. Dep't of Human Servs., 343 Ark. 580, 36 S.W.3d 308 (2001). Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Baker v. Ark. Dep't of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). 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. Dinkins, 344 Ark. 207, 40 S.W.3d 286. In resolving the clearly erroneous question, we give due regard to the opportunity of the trial court to judge the credibility of witnesses. Camarillo-Cox v. Ark. Dep't of Human Servs., 360 Ark. 340, 351–52, 201 S.W.3d 391, 398–99 (2005).
II. Points on Appeal
A. Ineffective Assistance of Counsel
Because Anita and Chris both present claims of ineffective assistance of counsel, we will address the claims together.
Prior to the termination hearing, Anita and Chris both asserted they had received ineffective assistance of counsel at the adjudication hearing. In her August 13, 2015 motion, Anita contended that, among other things, she did not have a meaningful hearing because she was not provided time to conduct discovery, received ineffective assistance of counsel, including counsel's failure to inform her of her right to appeal the adjudication order, and counsel's failure to object to hearsay statements on which the circuit court erroneously based its ruling upon. Likewise, in his June 29, 2015 "pro se motion for a new lawyer, " Chris contended his counsel was ineffective alleging that she did not adequately represent his interests, did not investigate, did not prepare, and did not inform him of his rights to appeal. At the termination hearing, Chris again asserted that he received ineffective assistance of counsel because his counsel did not inform him of his right to appeal the adjudication order. In her oral argument to the circuit court, Anita asserted that she had received ineffective assistance of counsel, "the adjudication hearing was not a meaningful hearing, and was not advised of the right to appeal." Chris joined in this argument asserting that he did not receive a meaningful hearing and received ineffective assistance of counsel.
At the August 14, 2015 hearing, the circuit court stated in its ruling from the bench
Now, we weren't going to get into this Motion that Mr. Kezhaya filed, Separate Defendant Ms. Taffner's Motion for a Finding that the Adjudication Hearing was not a Meaningful Hearing, but he brings it up in his closing statements, so I'm going to go ahead and respond to it now. He argues in his closing statement that the adjudication was not a meaningful hearing because the attorney did not do discovery for his client, Ms. Taffner, that the attorney for Ms. Taffner did not make proper objections, that the attorney for Ms. Taffner did not advise Ms. Taffner of her right to appeal. Mr. Taffner, his now attorney Ms. Tosh who's here today, also joins in those same objections that the adjudication hearing was not a meaningful hearing, and that his attorney at the time, Ms. Betsy Finocchi, was an ineffective attorney for Mr. Taffner and that Mr. Taffner was not advised to his right to appeal by Ms. Finocchi, that he had ineffective counsel. Now, based upon the Adjudication Order from February 18th, 2015, both mother and father had attorneys that had been appointed for them. Both of their attorneys were present, mom's attorney at the time, Sarah Williamson, dad's attorney at the time Betsy Finocchi. There was testimony at that hearing of Detective Bret Hagen, the Washington County Sheriff's Office detective. Karis Chastain testified, the child abuse center - - CACD investigator. And based upon the testimony, I adjudicated the children, all five of them, to be dependent-neglected. Both Mr. and Ms. Taffner's attorney had full opportunity to cross examine all the witnesses and did so. That hearing went on for a really, really long time. They had right to attorneys. Free attorneys were appointed to them. They had the right for discovery with - - that was something they could have done. The attorneys did make objections throughout that hearing, whether or not Mr. Kezhaya and Ms. Tosh think they were proper objections or not. That's not for me to decide. Obviously, there's a transcript. And as far as whether or not their attorneys advised them of their right to appeal, I don't know what they talked about in private with their lawyers. I find that the adjudication hearing was a meaningful hearing.
Further, in its September 11, 2015, termination order the circuit court stated,
The Motion filed by . . . Attorney for [Anita] . . . requesting that this court find that the adjudication hearing in this case was not a meaningful hearing is denied. The Court finds that the Adjudication hearing, was, in fact, a meaningful hearing and both defendants were represented by counsel and had full opportunity for cross-examination of witnesses - an opportunity of which they did avail themselves. The court further finds that the adjudication order was not appealed.
In Jones v. Arkansas Dep't of Human Services, 361 Ark. 164, 190–91, 205 S.W.3d 778, 794–95 (2005), we declined to address an ineffective-assistance-of-counsel claim in a termination-of-parental-rights proceeding. Nonetheless, the Jones court went on to say, "Because of the similarities in termination proceedings and criminal cases, we adopt the standard for ineffectiveness set out in Strickland." However, in Jones, the court did not reach the merits of the claim:
Notwithstanding our holding today that, as a matter of law, the right to counsel in termination cases includes the right to effective counsel, we must decline to issue any ruling as to whether Appellant's counsel was ineffective in this case. In short, Appellant failed to raise the issue of [the first attorney's] ineffectiveness and failed to fully develop the facts and circumstances surrounding her claim. Accordingly, we will not reach the merits of this point on appeal.
Jones, 361 Ark. at 190–91, 205 S.W.3d at 794–95.
Turning to the issue presented, Chris and Anita assert that they received ineffective assistance of counsel, which ultimately led to the termination of their parental rights. Stated differently, but for counsel's alleged ineffectiveness, their parental rights would not have been terminated. However, based on the record before us, like Jones, Chris and Anita did not develop their ineffective-assistance-of-counsel claims, present evidence or testimony regarding the ineffectiveness, and failed to fully develop the facts and circumstances surrounding their claim. Regarding counsel's ineffectiveness, the circuit court specifically stated "That's not for me to decide" and ruled only on the meaningfulness of the hearing. Further, based on the record before us, neither parent requested clarification or additional ruling specifically on the ineffectiveness arguments. Pursuant to Rule 60 of the Arkansas Rules of Civil Procedure, the circuit court may set aside or modify an order within 90 days "to prevent the miscarriage of justice. . . ." However, here, the record demonstrates that neither party pursued relief pursuant to Rule 60.
As explained in Jones, we "will not consider a claim of ineffective assistance of counsel as a point on appeal unless the issue was first raised in the trial court and the facts and circumstances surrounding the claim were fully developed in the trial court. See Ratchford v. State, 357 Ark. 27, 159 S.W.3d 304 (2004); McClina v. State, 354 Ark. 384, 123 S.W.3d 883 (2003); Chavis v. State, 328 Ark. 251, 942 S.W.2d 853 (1997)." Jones, 361 Ark. at 191, 205 S.W.3d at 794. "The rationale behind this rule is that an evidentiary hearing and finding as to the competency of appellant's counsel by the trial court better equips this court on review to examine in detail the sufficiency of the representation." Kanig v. State, 321 Ark. 515, 515–16, 905 S.W.2d 847, 847 (1995) (internal citations omitted). ...