Henderson v. ADHS
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Cite as 2010 Ark. App. 481
ARKANSAS COURT OF APPEALS
DIVISION III
No. CA10-28
ANTOINETTE HENDERSON,
APPELLANT
V.
ARKANSAS DEPARTMENT OF
HUMAN SERVICES,
APPELLEE
Opinion Delivered
June 2, 2010
APPEAL FROM THE MISSISSIPPI
COUNTY CIRCUIT COURT,
[NO. JV-08-35]
HONORABLE RALPH WILSON, JR.,
JUDGE,
AFFIRMED
KAREN R. BAKER, Judge
Appellant Antoinette Henderson challenges the trial court’s termination of her parental
rights. She alleges that the trial court abused its discretion in denying her motion to continue
the case. The continuance would have effectively stayed the dependency-neglect proceedings
pending resolution of her criminal charges that stemmed from the same facts initiating the
dependency-neglect proceedings. She asserts that the continuance was necessary to protect her
constitutional right against self-incrimination and her right to the effective assistance of
counsel; furthermore, the continuance would in no way have offended the purpose of the
juvenile code in that the juveniles’ permanence was not in a state of flux because of placements
with their respective fathers and that a delay in proceedings would not have injured the public
interest. The constitutional arguments were not raised in the earlier adjudication hearings
Cite as 2010 Ark. App. 481
prior to the court’s findings of Ms. Henderson’s involvement in the death of her child by
failure to protect, which was the basis of the pending criminal charges. We find no error and
affirm.
The Arkansas Department of Human Services (DHS) obtained an emergency order on
June 18, 2008, which resulted in the removal of juveniles AV and IV, ages four and one, from
the custody of their mother, Ms. Henderson. DHS alleged in the supporting petition that the
juveniles’ sibling, three-year-old EV, had died after apparent trauma to her abdomen and chest,
and that due to the juveniles’ mother being detained by law enforcement, there was no legal
caretaker available for the juveniles.
On September 11, 2008, the Mississippi County Circuit Court adjudicated the juveniles
dependent-neglected.
The court’s findings included two particularly relevant factual
determinations: (1) that a deceased sibling had been physically abused by appellant’s live-in
boyfriend who was the putative father of the deceased child, and (2) that the abuse occurred
after appellant left the deceased sibling unsupervised in the abusive father’s care in direct
contravention of a safety plan that DHS had previously implemented. Separate and apart from
the adjudication proceeding, appellant was criminally charged with endangering the welfare
of a minor and with homicide. The court presiding over the dependency-neglect proceeding
would not consider reunification services to appellant until her criminal charges had been
resolved. The court also granted DHS’s December 16, 2008 petition seeking the removal of
appellant’s fourth child, HV, who was born six months after the initiation of the case. On
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Cite as 2010 Ark. App. 481
February 12, 2009, and set forth in an order filed March 12, 2009, the court found HV to be
dependent-neglected. The trial court specifically found that appellant had endangered the lives
of the other siblings in this case, and that appellant had neglected and failed to protect EV from
serious physical abuse that caused the death of EV. Appellant never appealed these findings
or asserted constitutional rights at these earlier proceedings.
Each of the three children, while placed temporarily in foster care, had a goal of
reunification with each respective father, and that goal was achieved within six months. By
April 2009, the goal remained permanent relative placement with all three fathers participating
in the case. While DHS and the attorney ad litem attempted to terminate the parental rights
of all three fathers, the trial court denied the joint petition and found all three fathers to be in
substantial compliance with the court’s orders and the case plan. The court’s findings allowed
the fathers to move one step closer to obtaining custody of the children and to provide the
children with permanency outside of the foster care and adoption system.
On March 20, 2009, DHS and the attorney ad litem filed a joint petition for
termination of parental rights of appellant, alleging that appellant was involved in EV’s death,
and that she had subjected EV to chronic abuse and/or extreme or repeated cruelty. The
petition further alleged that there was little likelihood that reunification services to appellant
would result in a successful reunification. By agreement, the hearing on the joint petition for
termination was continued several times. The court eventually heard the petition on October
12, 2009.
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Cite as 2010 Ark. App. 481
At the termination hearing, appellant moved for a continuance, asserting that her
criminal charges involving the same allegations on which the termination petition was based
were still pending, and that she had no choice but to decline to testify at the hearing, thereby
exercising her Fifth Amendment rights. DHS responded that the juvenile code’s goal of
permanency for the juveniles superseded appellant’s “need to have her criminal charges
resolved,” and the trial court denied appellant’s motion for the “reason set forth by [DHS].”
The hearing proceeded with appellant refusing to testify in her defense, and the court
terminated her rights to her three children.
Her sole point of reversal is stated as follows: The trial court abused its discretion in
denying her motion to stay the proceedings pending resolution of her criminal charges, which
operated to deny her a defense and penalized her for asserting her Fifth Amendment right
against self-incrimination, where the juveniles’ permanence was not in a state of flux, and thus,
a delay in proceedings would not have injured the public interest or run counter to the
purpose of the juvenile code.
There exists an intricate balance of protecting the constitutional rights of parents and
protecting the parental rights of individuals who are simultaneously accused of a crime that
gives rise to a petition for termination of those parental rights. It is undeniably improper to
penalize one for the exercise of a constitutional right. Brooks v. Tennessee, 406 U.S. 605 (1972).
DHS responds to appellant’s arguments by noting that these arguments provide no relief for
appellant because appellant failed to raise them at the adjudication hearing. DHS argues that
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Cite as 2010 Ark. App. 481
appellant’s involvement in the death of her child had already been decided at the initial
dependency-neglect hearing and that she did not appeal that decision; therefore, there was no
reason to even revisit the issue at the termination proceeding. This issue is relevant to our
analysis of whether the trial court abused its discretion in denying the continuance of the
termination proceeding.
The question to us is whether the trial court abused its discretion in refusing to grant
a continuance of the termination proceeding when appellant asserted that continuing the
proceeding would violate her constitutional rights, each child was placed with each respective
father in furtherance of and in compliance with the reunification plan, and that delay would
not have injured the public interests or offended the principles of the juvenile code.
The denial of a motion for continuance is within the discretion of the trial court, and
that court’s decision will not be reversed absent an abuse of discretion amounting to a denial
of justice. See Gonzales v. State, 303 Ark. 537, 798 S.W.2d 101 (1990); Smith v. Arkansas Dep’t
of Human Servs., 93 Ark. App. 395, 401, 219 S.W.3d 705, 708 (2005). The appellant bears the
burden of showing that the trial court’s denial of a continuance was an abuse of discretion, and,
in order to show an abuse of discretion, the appellant must show that she was prejudiced by
the denial. See David v. State, 295 Ark. 131, 748 S.W.2d 117 (1988).
To find an abuse of discretion in the trial court’s denial of Ms. Henderson’s request for
a continuance, we must say that the trial court’s decision to deny was done improvidently and
without due consideration comparing the protection of appellant’s constitutional right against
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Cite as 2010 Ark. App. 481
self-incrimination and effective representation with the protection of her parental rights. See
Jones v. Double “D” Props., Inc., 352 Ark. 39, 98 S.W.3d 405 (2003).
Under the facts presented here, we cannot reach that conclusion. Appellant never
challenged the previous findings of the court that she had endangered the lives of her children.
She never challenged the previous finding that one child died of injuries sustained after
appellant had left the child in the unsupervised care of an individual in direct contravention
of a previously crafted safety plan for the family. Prior to those findings being made, appellant
never asserted her Fifth or Sixth Amendment constitutional rights. After those findings were
made, appellant never appealed those findings. We cannot say that appellant has proved that
she was prejudiced by the denial of the continuance because she failed to assert those rights at
the earlier proceedings. Because those findings were already established, the trial court did not
act improvidently or without due consideration when it denied appellant’s request for a
continuance.
Accordingly, we affirm.
PITTMAN and HART, JJ., agree.
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