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Adams v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division IV

February 13, 2019

DONALD ADAMS APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04JV-18-74] HONORABLE THOMAS E. SMITH, JUDGE

          Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

          Callie Corbyn, Office of Chief Counsel, for appellee.

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

          WAYMOND M. BROWN, JUDGE.

         The 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 affirm.

         Appellant 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 cross-examine.
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 client.
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 request -
Father's Attorney: And, Your Honor, the Rules of Civil Procedure don't talk about informal emails. They ...

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