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Burkett v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

November 30, 2016

MICHAEL BURKETT, SR. APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04JV-2016-24-3] HONORABLE THOMAS SMITH, JUDGE

         AFFIRMED

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Mary Goff, Office of Chief Counsel, for appellee.

          Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor children.

          RITA W. GRUBER, Judge.

         Michael 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.

         Because 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.

         On 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.

         In the 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.[1] The court set the termination hearing for the same day.

         On 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.

         The 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 as follows:

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 Court.
The court also responded to appellant's alternative motion for a protective order or ...

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