Taffner v. Ark. Dep't of Human Servs., CV–15–965

• Decision Date: 02 June 2016
• Docket Number: No. CV–15–965,CV–15–965
• Citation: 493 S.W.3d 319,2016 Ark. 231
• Parties: Chris Taffner and Anita Taffner, Appellants v. Arkansas Department of Human Services and N.T., A.T., B.T., K.T., and J.T., Minors, Appellees
• Court: Arkansas Supreme Court

2016 Ark. 231

493 S.W.3d 319

Chris Taffner and Anita Taffner, Appellants

v.Arkansas Department of Human Services and N.T., A.T., B.T., K.T., and J.T., Minors, Appellees

No. CV–15–965

Supreme Court of Arkansas.

Opinion Delivered June 2, 2016

Rehearing Denied July 21, 2016.

Kezhaya Law PLLC, by: Matthew A. Kezhaya, for appellant Anita Taffner.

Tina Bowers Lee, Arkansas Public Defender Commission, for appellant Chris Taffner.

Jerald A. Sharum, County Legal Operations, for appellee.

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

KAREN R. BAKER, Associate Justice

This appeal stems from the termination of parental rights of appellant, Chris Taffner, and separate appellant, Anita Taffner, of their five adopted children. N.T., A.T., B.T., K.T., and J.T. Appellee, the Arkansas Department of Human Services (DHS), initiated dependency neglect proceedings and ultimately termination of parental rights proceedings.

Chris and Anita Taffner are the adoptive parents of five children who came to their home through foster-care services and were adopted in 2009 and 2011 respectively. On January 2, 2015, DHS removed the children from the home as a result of allegations that Chris had sexually abused one of his children. Also on January 2, 2015, Chris was arrested for sexual abuse. On January 5, 2015, DHS filed an emergency custody and dependency-neglect petition. On January 7, 2015, the circuit court entered a probable-cause order and declared both Chris and Anita indigent and appointed separate counsel for each. In the petition and supporting affidavit, DHS asserted that the children were dependent-neglected as a result of abandonment, abuse, sexual abuse, sexual exploitations, neglect or parental unfitness. Further, the supporting affidavit stated that DHS had received credible statements during an ongoing sexual-abuse investigation from one of the children that their father was the alleged offender and the children were in imminent danger if they remained in the home. Additionally, the affidavit stated that the investigation was initiated after a report was received at the child-abuse hotline that the adoptive father, Chris, was alleged to have sexually abused one of the children. Further, the affidavit stated that the adoptive mother, Anita, stated that she did not believe the children's statement and was “100% supportive of her husband,” and if it came down to choosing between her husband and her children, she would choose “[her] husband of course.”

On February 18, 2015, the circuit court conducted an adjudication hearing. At the hearing, the parties agreed to the following stipulation of facts:

The parties agree to a finding of dependency-neglect as to B.T., A.T., K.T., N.T., and J.T., based upon the following stipulated facts: that the five children were previously in foster care and were adopted by Chris and Anita Taffner; that father, Chris Taffner, was arrested for rape and sexual assault in the second degree, three counts, in Washington County Criminal Case Number CR 2015–16–6; B.T. is named as one alleged victim in those proceedings; that the Arkansas State Police Crimes Against Children Division has found true against Chris Taffner with B.T. as victim for sexual contact, oral sex, and sexual penetration. That the criminal charges are pending and are currently set for trial on April 3rd, 2015. That mother, Anita Taffner, continues to live with Chris Taffner as his wife. Mother has articulated to DHS and to CACD that she believes and supports her husband, and that based upon the foregoing, the children cannot return to either parent at this time.

At the hearing, DHS brought witnesses to the adjudication hearing to prove its allegations, and following the circuit court's acceptance of the stipulation, requested that the witnesses be released. However, the circuit court retained the witnesses to take testimony to establish clear and convincing proof of aggravating circumstances. At the conclusion of the hearing, the circuit court announced its finding that Chris had sexually abused the children and that there was clear and convincing evidence of aggravated circumstances. Neither Chris nor Anita objected to this finding or appealed it. Also on February 18, 2015, the circuit court entered an order finding by clear and convincing evidence that the five children were dependent-neglected:

[A]fter considering evidence presented at this hearing, that these additional allegations ... are true and correct. Specifically, ... based on uncontroverted credible testimony ... the court finds: B.T. and K.T. were subjected to AGGRAVATED CIRCUMSTANCES due to sexual abuse: B.T. and K.T. were sexually abused by Chris Taffner. The court makes this finding by clear and convincing evidence. Ms. Taffner, Mother, is not protective of the children.¹

On May 19, 2015, DHS filed a petition to terminate Chris and Anita's parental rights, citing as grounds the circuit court's finding that Chris had abused B.T. and K.T., that Anita had not protected the children, that she still remained in the home, and that she had refused to submit to a psychological evaluation. Anita responded that the adjudication hearing was not a “meaningful” hearing, it was in violation of her due-process rights, and she had not been afforded effective assistance of counsel. Anita also filed a motion requesting that the circuit judge recuse from the case because “this Court's conduct has raised a reasonable apprehension of bias.” The circuit court denied this motion.

On June 29, 2015, Chris filed a pro se “Motion for a New Lawyer” in which he requested that the circuit court appoint him new counsel. In his motion, Chris argued that his counsel had not adequately represented him in the adjudication hearing, asserting that counsel was not prepared for the hearing, that counsel had not called witnesses or made any attempts to investigate the claims against him, and that counsel had not informed Chris of his right to appeal the order. On June 30, 2015, his appointed counsel filed a motion to withdraw as counsel, stating that she and Chris “have a significant difference in strategy and tactics to defend this matter.” The circuit court granted counsel's motion to withdraw as counsel and appointed new counsel but did not make findings on Chris's ineffective- assistance-of-counsel allegations.

On August 14, 2015, the circuit court held a hearing on the petition to terminate parental rights. Prior to the hearing, Anita filed a “Motion for a Finding that the Adjudication Hearing was not a Meaningful Hearing” in which she again contended that the adjudication hearing was not meaningful, it violated her due-process rights, and her counsel was ineffective. The attorney ad litem and DHS both objected to Anita's motion, and the circuit court stated that they would each have ten days based on the Rules of Civil Procedure to respond to the motion and would not rule on the motion at that the hearing. Following the hearing, the circuit court entered an order terminating Chris and Anita's parental rights. Additionally, the court denied Anita's motion on the adjudication hearing, finding that “the adjudication hearing was, in fact, a meaningful hearing, as both defendants were represented by counsel and had full opportunity for cross-examination of witnesses—an opportunity of which they did avail themselves.” The court further recognized that the adjudication order had not been appealed. Chris and Anita both filed timely notices of appeal from the termination order.

From the termination order, Chris and Anita appealed to the court of appeals. On March 17, 2016, we accepted certification of this case. On appeal, Chris presents one issue: Chris was denied his right to effective assistance of counsel when his appointed counsel at the adjudication hearing, and the ineffectiveness of his appointed counsel, tainted the remainder of the dependency-neglect proceedings such that the termination of his parental rights was a foregone conclusion. On appeal, Anita presents three issues: (1) Anita was denied effective assistance of counsel; (2) the circuit court erred when it improperly refused to recuse itself; and (3) the circuit court erred when it deprived Anita of her Sixth Amendment right to confront witnesses.

I. Standard of Review

In cases where the issue is one of termination of parental rights, there is a heavy burden placed upon the party seeking to terminate the relationship. Trout v. Ark. Dep't of Human Servs., 359 Ark. 283, 197 S.W.3d 486 (2004) ; Ullom v. Ark. Dep't of Human Servs., 340 Ark. 615, 12 S.W.3d 204 (2000). Termination of parental rights is an extreme remedy in derogation of the natural rights of the parents. Id. Nevertheless, parental rights will not be enforced to the detriment or destruction of the health and well-being of the child. Crawford v. Ark. Dep't of Human Servs., 330 Ark. 152, 951 S.W.2d 310 (1997). Parental rights must give way to the best interest of the child when the natural parents seriously fail to provide reasonable care for their minor children. J.T. v. Ark. Dep't of Human Servs., 329 Ark. 243, 947 S.W.2d 761 (1997). On appellate review, this court gives a high degree of deference to the trial court, which is in a far superior position to observe the parties before it. Dinkins v. Ark. Dep't of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). Further, pursuant to Ark.Code Ann. § 9–27–341(b)(3) (Repl.2015), an order terminating parental rights must be based upon clear and convincing evidence. See also Larscheid v. Ark. Dep't of Human Servs. , 343 Ark. 580, 36 S.W.3d 308 (2001). Clear and convincing evidence is that degree of proof that will produce in the factfinder a firm conviction as to the allegation sought to be established. Baker v. Ark. Dep't of Human Servs., 340 Ark. 42, 8 S.W.3d 499 (2000). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite...