Arkansas Supreme Court; Josephine Linker Hart; Shawn A. Womack

“ The Arkansas Department of Human Services (DHS) appeals from the Crawford County Circuit Court's April 5, 2017 orders holding Tony Huffman, a DHS attorney, and Erika Eneks, a caseworker for the Crawford County DHS Office, in contempt.
I. BackgroundI. Background Most of the relevant facts are not in dispute. This appeal arises out of a dependency-neglect case initiated in 2015 when DHS took custody of Tegan Dowdy's children. According to representations by the children's attorney ad litem, she filed a motion to have the children placed in their grandparents' home in the fall of 2016. ”

“ Simply put, the evidence supporting that conclusion is thin, Eneks's own testimony contradicts it, and even assuming it were true, there is no law, rule, or norm that would support the idea that criminal contempt is the proper tool with which circuit courts should regulate the presence or absence of uncalled potential witnesses. ”

“ In determining whether a particular action by a judge constitutes a finding of criminal or civil contempt, the focus is on the character of relief rather than the nature of the proceeding. Fitzhugh v. State, 296 Ark. 137, 138, 752 S.W.2d 275, 276 (1988) . Because civil contempt is designed to coerce compliance with the court’s order, the civil contemnor may free himself or herself by complying with the order. ”

“ Const. art. 7, § 26 ("The General Assembly shall have power to regulate the punishment of contempts not committed in the presence or hearing of the courts, or in disobedience of process.") ; Ark. Code Ann. § 16-10-108; see also Allison v. DuFresne, 340 Ark. 583, 12 S.W.3d 216 (2000) ; Davis v. Merritt, 252 Ark. 659, 480 S.W.2d 924 (1972) . Direct contempt is a contemptuous act "committed within the immediate presence of the Court." Merritt, 252 Ark. at 670, 480 S.W.2d at 930. Indirect contempt is contemptuous behavior committed outside the presence of the judge. ”

“ Additionally, and more important to the issue presently before this court, at the March 2, 2017 hearing, the attorney ad litem took serious exception to the fact that Erica Eneks, the caseworker who had testified at every prior hearing in this case and who had been in the courtroom all day, Eneks had gotten up and left the courthouse right before the change-of-custody hearing began. ”

“ Eneks had been present in Court all that morning for the entire docket; that she was instructed to leave by Mr. Huffman prior to the hearing and then she immediately returned after because he didn't want her put on the spot about present or previous opinions as to the placement of the juveniles. Ms. Eneks' leaving and returning was of her own volition. She is an experienced employee of the Department and has served as a caseworker and currently is a foster care supervisor.
The circuit court's ultimate conclusion that "there was an overt and conscious act by Ms. ”

“ Ms. Eneks's attorney objected to this question, citing attorney-client privilege. The circuit court told Ms. Eneks she could answer if she wanted to, and she elected not to do so. The show-cause hearing then concluded. From the bench, the circuit court held both Huffman and Eneks in contempt, ruling as follows:
To intensely engage in an activity to deprive the Court of relevant information in any case involving the welfare and best interest of minor children over which this Court has jurisdiction and which the DCFS has responsibility cannot be handled as a chess game. . . . Ms. ”