MICHAEL BURKETT, SR. APPELLANT
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04JV-2016-24-3]
HONORABLE THOMAS SMITH, JUDGE
Tabitha McNulty, Arkansas Public Defender Commission, for
Goff, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor children.
W. GRUBER, Judge.
Burkett, Sr., appeals from the Benton County Circuit
Court's order adjudicating his two children-M.B. (8/9/08)
and A.B. (8/30/10)-dependent-neglected and terminating his
parental rights. His sole argument on appeal is that the
circuit court abused its discretion in denying his motion to
stay the proceedings or, in the alternative, to seal his
testimony. We hold that the circuit court did not abuse its
discretion, and we affirm its order.
appellant has not challenged the circuit court's decision
adjudicating the children dependent-neglected or its findings
regarding termination of his parental rights, only a brief
recitation of the facts is necessary. At the time this case
was initiated, appellant and the children's mother,
Melinda, were divorced, and she had remarried Charles Taldo.
Appellant had custody, and Melinda had regular visitation.
While the children were visiting the Taldos over the
Christmas holidays, M.B. was discovered squatting in the
bathtub touching his anus. Melinda asked him about the
behavior, but he would not speak to her about it. He then
told Charles that appellant had touched him inappropriately.
January 3, 2016, Early Mallow, a forensic interviewer at the
Benton County Children's Advocacy Center, interviewed
M.B., who told her that when he was six, "his dad . . .
put his mouth on his private and moved his head back and
forth." Because Melinda did not have legal custody of
the children, the Department of Human Services (DHS) filed a
petition for emergency custody, and the court entered an
order granting the petition on January 5, 2016. During the
investigation, authorities also discovered that one of
appellant's nephews had alleged that he had been sexually
abused by appellant. Appellant was subsequently arrested and
charged with two counts of rape.
probable-cause order entered on January 12, 2016, the court
set the adjudication hearing for February 23, 2016. On
February 23, 2016, DHS and the attorney ad litem filed a
joint petition to terminate appellant's parental rights.
The court also entered an order that day finding good cause
to continue the adjudication hearing until April 19, 2016,
noting that the parents had waived objections to holding the
hearing within the statutory time frame. The court set the
termination hearing for the same day.
March 31, appellant filed a motion to stay proceedings and an
accompanying brief, stating that he was incarcerated and was
facing criminal charges stemming from the same facts giving
rise to the adjudication and termination. He claimed that he
intended to invoke his Fifth Amendment right to remain silent
at the adjudication and termination hearings and that his
inability to speak in his own defense at these hearings would
severely impair his ability to defend himself. Thus, he
argued, the finding of dependency-neglect or termination of
parental rights in such circumstances would unlawfully
penalize him for asserting his Fifth Amendment right. He also
argued that proceeding with the adjudication and termination
hearings would unconstitutionally impair his Sixth Amendment
right to effective assistance of counsel in his criminal
trial because it would impede his criminal counsel's
ability to prepare his case. Specifically, he argued that
DHS's presentation of evidence against appellant would
deny his criminal attorneys the opportunity to effectively
cross-examine witnesses in the criminal trial due to the
different admissibility standards in civil and criminal
trials. And, appellant claimed, this could subject him to the
introduction of evidence at his criminal trial that would
otherwise be constitutionally inadmissible.
combined adjudication/termination hearing was held on April
19, 2016. When DHS called appellant to the stand, he renewed
his motion to stay proceedings on the basis of his
constitutional rights under both the Fifth and Sixth
Amendments. The court denied the motion, reasoning that
appellant's criminal case had not been set for trial and
that the case could constitute "a majority of this
child's life, that [the court] did not think warrant[ed]
the staying of this proceeding." Appellant's counsel
confirmed that he was not aware of a trial date having been
set. In addition, the court noted that, in light of the $200,
000 bond, appellant would presumably be in jail during the
pendency of the case. The court denied the motion, concluding
I don't ever allow the child's best interests to be
put on hold, when it comes to a criminal proceeding that may
take one year, two years, or three years. The interests of
the children need to be placed first, at all times, in this
The court also responded to appellant's alternative
motion for a protective order or ...