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Arkansas Department of Human Services v. Dowdy

Supreme Court of Arkansas

October 25, 2018

ARKANSAS DEPARTMENT OF HUMAN SERVICES, ERICA ENEKS, AND TONY HUFFMAN APPELLANT
v.
TEGAN DOWDY AND MINOR CHILDREN APPELLEE

          APPEAL FROM THE CRAWFORD COUNTY CIRCUIT COURT [NO. 17JV-2015-287] HONORABLE MICHAEL MEDLOCK, JUDGE

          Andrew Firth, Office of Chief Counsel, for appellant.

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

          Leslie Rutledge, Att'y Gen., by: Brad Newman, Ass't Att'y Gen., for Michael Medlock.

          JOSEPHINE LINKER HART, ASSOCIATE JUSTICE

         The Arkansas Department of Human Services (DHS) appeals from the Crawford County Circuit Court's April 5, 2017 orders holding Tony Huffman, a DHS attorney, and Erika Eneks, a caseworker for the Crawford County DHS Office, in contempt.

         I. Background

         Most of the relevant facts are not in dispute. This appeal arises out of a dependency-neglect case initiated in 2015 when DHS took custody of Tegan Dowdy's children. According to representations by the children's attorney ad litem, she filed a motion to have the children placed in their grandparents' home in the fall of 2016. The issue of the children's placement was taken up by the circuit court on November 3, 2016, at a permanency-planning hearing.[1] According to the ad litem's representations, DHS objected at the permanency-planning hearing to the placement of the children with the grandparents because the grandfather is a registered sex offender, and it is DHS's policy to always object to such a placement. The circuit court, after considering all the evidence presented at the hearing, nonetheless elected to place the children with their grandparents, reflecting its decision in an order that, according to the ad litem, was entered on November 21, 2016.

         More than ninety days later, DHS filed a motion for change of custody, citing the fact that the grandfather is a registered sex offender as the basis for change of custody. The circuit court took up DHS's motion for change of custody at a hearing on March 2, 2017. At the hearing, the attorney ad litem and the attorney for the grandparents argued that the motion for change of custody was baseless because there were no new facts since the November 3, 2016 hearing; therefore, res judicata applied. DHS argued that the grandfather's sex-offender status had not actually been addressed at the November 3, 2016 hearing. The attorney ad litem argued that the change-of-custody hearing should be continued so that the parties could obtain the transcripts from the November 3, 2016 hearing.

         Additionally, and more important to the issue presently before this court, at the March 2, 2017 hearing, the attorney ad litem took serious exception to the fact that Erica Eneks, the caseworker who had testified at every prior hearing in this case and who had been in the courtroom all day, Eneks had gotten up and left the courthouse right before the change-of-custody hearing began. Instead of the caseworker, DHS wanted Lisa Jenson, who is the area director for DHS and who was not previously involved in the Dowdy case, to testify as DHS's designated representative for the proceeding that day. After the ad litem raised the issue of Eneks's absence, the circuit court posited that DHS's attorney, Tony Huffman, had told Ms. Eneks to leave. Huffman responded that he "certainly wouldn't deny it." The circuit court further inquired as to why Huffman had told Eneks to leave, as set forth below.

The Court: Where is Ms. Eneks, Mr. Huffman?
Mr. Huffman: I don't know, your Honor.
Mr. Huffman: I don't believe you. I believe you told her to leave. Did you tell her to leave?
Mr. Huffman: I told her to go get [inaudible].
The Court: You told her to leave because you thought she'd be a witness in this case, didn't you?
Mr. Huffman: I thought it was possible they would try to.
The Court: And anything she might say would probably be contrary to what you're urging me to do, wouldn't it?
Mr. Huffman: I didn't want her put on the spot by anybody if she wasn't subpoenaed.

         The circuit court then continued the change-of-custody hearing for a later date so that the transcripts from the November 3, 2016 hearing could be obtained. The circuit court also set a show-cause hearing for March 16, 2017, to address whether Huffman and Eneks should be held in contempt for hindering or interfering with the circuit court's proceedings in this case.

         At the show-cause hearing, the circuit court entered two court exhibits: (1) the transcript from the March 2, 2017 hearing, and (2) the courthouse security footage from March 2, 2017. The circuit court observed that the footage showed Huffman signaling a "non-verbal cue" to Eneks shortly before the Dowdy hearing, Eneks then leaving the courtroom and driving away from the courthouse, and Eneks ...


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