FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04JV-18-74]
HONORABLE THOMAS E. SMITH, JUDGE
Tabitha McNulty, Arkansas Public Defender Commission, for
Corbyn, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L.
Chrestman, attorney ad litem for minor children.
WAYMOND M. BROWN, JUDGE.
Benton County Circuit Court terminated the parental rights of
appellant Donald Adams to his three children, J.A. (DOB
01-31-01), D.A. (DOB 06-17-08), and H.A. (DOB 11-19-10).
Adams appeals, arguing that the trial court (1) violated Rule
6(c) of the Arkansas Rules of Civil Procedure when it granted
DHS's motion, that was filed only six days prior to the
hearing, and without giving appellant his full time to
respond; and (2) committed reversible error when excluding
appellant from the courtroom during the testimony of his
accuser where the adjudication and termination orders were
based in large part upon the accuser's credibility. We
does not challenge the sufficiency of the termination.
Therefore, only a brief recitation of the facts is necessary.
The Arkansas Department of Human Services (DHS) removed the
children from appellant's home on January 29, 2018, as a
result of allegations that appellant sexually and physically
abused at least one of his children. DHS filed a petition for
emergency custody and dependency-neglect on February 1, 2018.
The court entered an ex parte order for emergency custody on
February 2, 2018. On March 15, 2018, DHS and the attorney ad
litem filed a joint petition for the termination of
appellant's parental rights. DHS filed a motion to
exclude appellant from the courtroom during the testimony of
J.A. on July 11, 2018. In the motion, DHS noted that the
adjudication and termination hearings were scheduled for July
17, 2018. At the beginning of the hearings, DHS informed the
court of its pending motion to have appellant excluded from
the courtroom during J.A.'s testimony. DHS suggested that
appellant be allowed to watch the testimony from a different
room. At that time, the following colloquy took place:
Father's Attorney: And, Your Honor, for the record, we
would oppose that. We would ask that he be allowed to stay in
the courtroom. I have reviewed the Department's motion. I
would point out to the Court that I've only had eight
calendar days, and not the 10 business days authorized by the
rules to respond; but I'll do my best.
Your Honor, counsel has pointed to Smith v. State,
and Bertrand v. State in terms of arguing that my
client is not entitled to his Sixth Amendment right to
confrontation in a civil D/N matter.
I submit, Your Honor, that those cases don't articulate
that it is only in criminal. They point actually to the
Constitution of Arkansas and the United States to say that a
person in a criminal context has the right to confront and
Now, Arkansas and the Court's -- particularly in
Linker-Flores, that's 359 Ark. 131 have taken
criminal standards of other things such as representation of
counsel, and applied them in the criminal context. That's
Linker-Flores v. DHS. And have applied them in the
civil D/N context, Your Honor.
So there's nothing that prohibits the Court from applying
the Sixth Amendment right to confront and cross-examine to my
And, moreover, Your Honor, in Maryland v. Craig
where they set up, the Federal Supreme Court set up the
standards for confrontation and cross examination in the
criminal context, they indicated that the Court can impair
that, if the Court makes specific case-based findings, and
the testimony can otherwise be assured to be credible.
As I understood it, they're credible, Your Honor. I
submit that the Department has offered no testimony to
support that, and has offered no argument with regard to the
Court as to why in this particular case it's necessary,
particularly given Ms. J.A.'s age. I believe she is in
her late teens. She is nigh-on an adult, Your Honor.
Ad Litem: Your Honor, I would just point out that I think
it's disingenuous too say that he just got this 10 days
ago. I had emailed him informally on June 22, asking him if
he would be agreeable to having his client watch. He said he
would get back. And then I know that DHS also emailed him
again on July 6.
The formal motion was sent after it was determined that he
would want a formal motion. But he's known about this
Father's Attorney: And, Your Honor, the Rules of Civil
Procedure don't talk about informal emails. They ...