Cite as 2016 Ark. App. 570

ARKANSAS COURT OF APPEALS

DIVISION II

No. CV-16-686

MICHAEL BURKETT, SR.

APPELLANT

V.

ARKANSAS DEPARTMENT OF

HUMAN SERVICES AND MINOR

CHILDREN

APPELLEES

Opinion Delivered November 30, 2016

APPEAL FROM THE BENTON

COUNTY CIRCUIT COURT

[NO. 04JV-2016-24-3]

HONORABLE THOMAS SMITH,

JUDGE

AFFIRMED

RITA W. GRUBER, Judge

Michael Burkett, Sr., appeals from the Benton County Circuit Court’s order

adjudicating his two children—M.B. (8/9/08) and A.B. (8/30/10)—dependent-neglected

and terminating his parental rights. His sole argument on appeal is that the circuit court

abused its discretion in denying his motion to stay the proceedings or, in the alternative, to

seal his testimony. We hold that the circuit court did not abuse its discretion, and we affirm

its order.

Because appellant has not challenged the circuit court’s decision adjudicating the

children dependent-neglected or its findings regarding termination of his parental rights, only

a brief recitation of the facts is necessary. At the time this case was initiated, appellant and the

children’s mother, Melinda, were divorced, and she had remarried Charles Taldo. Appellant

had custody, and Melinda had regular visitation. While the children were visiting the Taldos

over the Christmas holidays, M.B. was discovered squatting in the bathtub touching his anus.
Cite as 2016 Ark. App. 570

Melinda asked him about the behavior, but he would not speak to her about it. He then told

Charles that appellant had touched him inappropriately. 

On January 3, 2016, Early Mallow, a forensic interviewer at the Benton County

Children’s Advocacy Center, interviewed M.B., who told her that when he was six, “his dad

. . . put his mouth on his private and moved his head back and forth.” Because Melinda did

not have legal custody of the children, the Department of Human Services (DHS) filed a

petition for emergency custody, and the court entered an order granting the petition on

January 5, 2016. During the investigation, authorities also discovered that one of appellant’s

nephews had alleged that he had been sexually abused by appellant. Appellant was

subsequently arrested and charged with two counts of rape.

In the probable-cause order entered on January 12, 2016, the court set the

adjudication hearing for February 23, 2016. On February 23, 2016, DHS and the attorney

ad litem filed a joint petition to terminate appellant’s parental rights. The court also entered

an order that day finding good cause to continue the adjudication hearing until April 19,

2016, noting that the parents had waived objections to holding the hearing within the

statutory time frame.1 The court set the termination hearing for the same day. 

On March 31, appellant filed a motion to stay proceedings and an accompanying brief,

stating that he was incarcerated and was facing criminal charges stemming from the same facts

giving rise to the adjudication and termination. He claimed that he intended to invoke his

Fifth Amendment right to remain silent at the adjudication and termination hearings and that

1See Ark. Code Ann. § 9-27-327(a)(4) (Repl. 2015).

2
Cite as 2016 Ark. App. 570

his inability to speak in his own defense at these hearings would severely impair his ability

to defend himself. Thus, he argued, the finding of dependency-neglect or termination of

parental rights in such circumstances would unlawfully penalize him for asserting his Fifth

Amendment right. He also argued that proceeding with the adjudication and termination

hearings would unconstitutionally impair his Sixth Amendment right to effective assistance

of counsel in his criminal trial because it would impede his criminal counsel’s ability to

prepare his case. Specifically, he argued that DHS’s presentation of evidence against appellant

would deny his criminal attorneys the opportunity to effectively cross-examine witnesses in

the criminal trial due to the different admissibility standards in civil and criminal trials. And,

appellant claimed, this could subject him to the introduction of evidence at his criminal trial

that would otherwise be constitutionally inadmissible. 

The combined adjudication/termination hearing was held on April 19, 2016. When

DHS called appellant to the stand, he renewed his motion to stay proceedings on the basis

of his constitutional rights under both the Fifth and Sixth Amendments. The court denied

the motion, reasoning that appellant’s criminal case had not been set for trial and that the case

could constitute “a majority of this child’s life, that [the court] did not think warrant[ed] the

staying of this proceeding.” Appellant’s counsel confirmed that he was not aware of a trial

date having been set. In addition, the court noted that, in light of the $200,000 bond,

appellant would presumably be in jail during the pendency of the case. The court denied the

motion, concluding as follows:

I don’t ever allow the child’s best interests to be put on hold, when it comes to a

criminal proceeding that may take one year, two years, or three years. The interests

3
Cite as 2016 Ark. App. 570

of the children need to be placed first, at all times, in this Court.

The court also responded to appellant’s alternative motion for a protective order or

sealing of the proceedings:

COURT: Well, these are close[d] proceedings anyway. I’m not going to be allowing

these proceedings to be turned over without some compelling interest that would

sustain or justify that. As far as this court is concerned, this is a closed, sealed,

proceeding that will not be open.

 I assume the only opening of the proceeding that’s going to happen is in

the event your client loses, and decides you have to appeal.

 I think, at that point, that stuff could end up being in the record. If you

were to—if he was to lose, and I terminate his rights, and you chose to appeal it, you

would ask for a transcript, and you would publish the transcript to the higher court

to make rulings; would you not?

APPELLANT’S COUNSEL: I would, Your Honor, but those transcripts are under seal

at the higher court, as well.

Appellant then testified briefly and invoked his Fifth Amendment right to remain

silent. M.B. testified, describing several incidents of sexual abuse perpetrated on him by

appellant. 

The court entered an adjudication and termination-of-parental rights order on May

20, 2016, finding the children to be dependent-neglected due to a substantial risk of serious

harm as a result of sexual abuse and parental unfitness perpetrated by appellant. The court

then found by clear and convincing evidence that it was in the children’s best interest to

terminate appellant’s parental rights and that DHS had proved the ground of aggravated

circumstances both because of sexual abuse and because the court found that there was little

likelihood that services to the family would result in successful reunification. The court also

4
Cite as 2016 Ark. App. 570

specifically found M.B. to be credible in his account of the sexual abuse by appellant.

Appellant does not challenge the decision adjudicating the children dependentneglected or the decision terminating his parental rights. His sole point on appeal is that the

circuit court abused its discretion in denying his motion to stay both proceedings. Our case

law is clear that the existence of a pending criminal charge relating to events at issue in a

termination case does not automatically require a stay of the termination case until those

charges are resolved. Campbell v. Ark. Dep’t of Human Servs., 2016 Ark. App. 146, at 4. The

decision whether to stay termination proceedings pending the outcome of a related criminal

case is within the sound discretion of the circuit court and involves balancing the interests

of all parties. Id. We will not reverse the denial of a motion for continuance absent an abuse

of discretion amounting to a denial of justice. Id. at 3; Smith v. Ark. Dep’t of Human Servs.,

93 Ark. App. 395, 401, 219 S.W.3d 705, 708 (2005). Additionally, we will not reverse absent

a showing of prejudice from the denial of the motion for continuance. Martin v. Ark. Dep’t

of Human Servs., 2015 Ark. App. 407, at 4, 465 S.W.3d 881, 883–84.

We hold that the circuit court did not abuse its discretion in denying appellant’s

motion to stay the proceedings until the conclusion of his criminal proceedings. Termination

cases are unique civil cases because time is viewed from the juvenile’s perspective and the

best interests of the children take precedence at every stage of the proceedings. Ark. Code

Ann. § 9-27-341(a)(3) & Ark. Code Ann. § 9-27-102 (Repl. 2015). Our statute governing

termination of parental rights sets forth its intent to “provide permanency in a juvenile’s life”

in all circumstances where return to the family home is contrary to the juvenile’s health,

5
Cite as 2016 Ark. App. 570

safety, or welfare and it appears from the evidence that return to the family home cannot be

accomplished “in a reasonable period of time as viewed from the juvenile’s perspective.” Ark.

Code Ann. § 9-27-341(a)(3). Our case law is clear that a child’s need for permanency and

stability may override a parent’s request for additional time to improve the parent’s

circumstances. Dozier v. Ark. Dep’t of Human Servs., 2010 Ark. App. 17, at 9, 372 S.W.3d

849, 854. Moreover, our legislature has made the children’s best interests the controlling

factor in these proceedings:

The General Assembly recognizes that children are defenseless and that there is no

greater moral obligation upon the General Assembly than to provide for the

protection of our children and that our child welfare system needs to be strengthened

by establishing a clear policy of the state that the best interests of the children must be

paramount and shall have precedence at every stage of juvenile court proceedings.

Ark. Code Ann. § 9-27-102.

We turn first to appellant’s argument that his inability to speak in his own defense at

these hearings severely impaired his ability to defend himself and thus violated his Fifth

Amendment right under the Constitution. The court noted that appellant’s request for the

stay was indefinite given that no trial date had been set in appellant’s criminal case. Thus, the

court expressed significant concern that the continuance could conceivably amount to a

significant portion of the children’s lives. In line with our state’s clearly expressed policy to

provide permanency in a reasonable amount of time viewed from the juvenile’s perspective

and putting the best interests of the children first at every stage of proceedings, the court

denied appellant’s motion. Addressing appellant’s alternative motion to seal the proceedings,

the court noted that the proceedings had already been closed and sealed. Indeed, appellant’s

6
Cite as 2016 Ark. App. 570

counsel actually stated that the proceedings were also sealed on appeal. 

Finally, appellant has not appealed the findings supporting adjudication or the

termination. The court found two grounds for termination. While one of those grounds was

aggravated circumstances based on sexual abuse, the other ground was aggravated

circumstances based on little likelihood that services to the family would result in successful

reunification. The basis for this finding was appellant’s incarceration from the time of

removal of the children through the as-yet-not-set criminal trial and his consequent inability

to work on a case plan to resolve the issues causing removal while incarcerated. This finding

did not depend on appellant’s testimony or proof of sexual abuse. Neither would have

affected the basis for the court’s finding on this ground.

Appellant also argues on appeal that the court abused its discretion in denying his

motion for stay based on his Sixth Amendment right to effective assistance of counsel in his

criminal proceeding. Specifically, he argued that DHS’s presentation of evidence against him

in his civil hearing denied his criminal attorneys the opportunity to effectively cross-examine

witnesses in the criminal trial. He cites no authority for a court to evaluate the effectiveness

of trial counsel before the trial has occurred. We will not speculate regarding the events at

the criminal trial, which had not been set at the time of his termination hearing, or the

effectiveness of his criminal counsel, who had yet to perform. And we hold that the circuit

court did not abuse its discretion in denying his motion for stay on this speculative basis. To

the extent that appellant argues on appeal that the circuit court’s denial of his motion for stay

violated his right to effective assistance of counsel at the termination hearing, his argument

7
Cite as 2016 Ark. App. 570

is not preserved for our review. In order to preserve a challenge for our review, a movant

must advise the circuit court of the specific basis on which his motion is made. Hunter v.

State, 330 Ark. 198, 203, 952 S.W.2d 145, 148 (1997); see also Maciel v. State, 2016 Ark. App.

413, ___ S.W.3d ___. Here, appellant’s Sixth Amendment argument in the circuit court was

based solely on ineffective assistance of counsel in the criminal trial.

Affirmed.

HARRISON and HOOFMAN, JJ., agree.

Tabitha McNulty, Arkansas Public Defender Commission, for appellant.

Mary Goff, Office of Chief Counsel, for appellee.

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

8