Albright v. Arkansas Department of Human Services

248 S.W.3d 498, 97 Ark. App. 277, 2007 Ark. App. LEXIS 52
CourtCourt of Appeals of Arkansas
DecidedJanuary 31, 2007
DocketCA 06-270
StatusPublished
Cited by37 cases

This text of 248 S.W.3d 498 (Albright v. Arkansas Department of Human Services) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Albright v. Arkansas Department of Human Services, 248 S.W.3d 498, 97 Ark. App. 277, 2007 Ark. App. LEXIS 52 (Ark. Ct. App. 2007).

Opinion

Wendell L. Griffen, Judge.

On November 18, 2005, the Faulkner County Circuit Court filed an order terminating Michael Albright’s parental rights to his three children, H.A. (bom December 6, 2001), B.A. (born October 5, 2002), and D.A. (born September 19, 2004), based upon a finding that he sexually abused H.A. and his girlfriend’s daughter, S.M. Appellant appeals from the termination order, arguing that the circuit court erred in entering the order based upon a finding unrelated to the original adjudication order. He also challenges the sufficiency of the evidence supporting the finding that he sexually abused S.M. We find none of appellant’s arguments persuasive; therefore, we affirm.

On June 20, 2005, the circuit court entered an order adjudicating H.A., B.A., D.A., and S.M. dependent-neglected, based upon findings of educational neglect for S.M. and of medical neglect for the other three children. On July 22, 2005, the Arkansas Department of Human Services (DHS) filed a petition to terminate appellant’s parental rights to H.A., B.A., and D.A., alleging sexual abuse. The termination hearing was held November 15, 2005.

Appellant testified that he wanted his children returned to him because he was their biological father. He stated that he was involved in feeding, bathing, and clothing the children when he lived with Beverly McKee, the children’s mother. 1 He stated that he did not want to bathe the girls (S.M. and H.A.) after they turned two because he did not want to be accused of sexually abusing them. Appellant testified that S.M. had rashes in her vaginal area due to diaper rash and that he and McKee would apply ointment. He stated that he stopped applying S.M.’s ointment once she was potty-trained, again to avoid being accused of abusing the children. He recalled telling Detective Melissa Smith of the Conway Police Department that he had never bathed S.M. or applied any medicine to her breasts, buttocks, or vaginal area. Appellant also recalled an interview with Sergeant Jim Barrett, where he told Barrett that he might have inadvertently touched S.M.’s privates while drying her off after a bath. Appellant testified that he was the primary disciplinarian when he lived with McKee and that, on severe infractions, he would spank the children on their bare bottoms. He stated that he did not believe that he would be accused of molesting the children by spanking them.

Sergeant Barrett corroborated much of appellant’s testimony regarding their interview. Barrett testified that he interviewed appellant on June 1, 2005, and that appellant was at the police station to take a voice-stress test. He stated that, when initially discussing the allegations, appellant “stated categorically and unequivocally” that he never touched S.M.’s breast or vaginal area. However, as the pretest interview continued, appellant changed his story and stated that he might have inadvertently touched S.M. in those areas when he was drying her off. At that point, Sergeant Barrett decided that the voice-stress test was unnecessary.

With only the judge, the ad litem, and the court reporter present, S.M., then six years old, testified that she was afraid of appellant because he touched her “in the wrong spots,” referring to her chest and genital area. She stated that appellant was not taking care of her when he touched her. S.M. testified that appellant once told her, “You’d better not tell your mom or I’ll call the cops on your mom.” She also stated that appellant choked her on one occasion.

Maria Hill testified that S.M. lived with her for a briefperiod of time. While Hill testified about how she came to have temporary guardianship of S.M., that testimony is not relevant to the issues in this appeal. However, Hill testified that one night while S.M. was saying her prayers, she overheard S.M. say that she wanted to hurt appellant. She also stated that S.M. had acted out sexually one night. According to her testimony, S.M. was spending the night at a teacher’s house. The teacher had a daughter, and S.M. and her daughter slept in the same bed. The teacher saw S.M. trying to take the other girl’s clothes off. Hill noted a third incident, where S.M. was playing with two dolls. As S.M. was playing with the dolls, Hill heard her say, “Take your clothes off. I want to get on top of you.”

Detective Smith testified that she interviewed appellant on March 31, 2005, regarding the allegations. She stated that appellant denied touching S.M.’s breasts, buttocks, or vaginal area. He also denied applying medication to those areas or bathing her. Smith said that appellant explained that he avoided “a thing like that to keep himself from situations like this.” She stated that she also interviewed S.M., who told Smith that appellant abused her. Smith concluded that appellant touched S.M. intentionally and inappropriately.

Smith also testified about her interviews with McKee. During her first interview, McKee told Smith that “she had to throw a fit in order to get [appellant] to help her with anything,” although appellant was willing to bathe the children. Smith stated that during a second interview, McKee claimed to remember things that she did not remember before. McKee told Smith about an incident where she heard S.M. crying. McKee stated that she went into the room where S.M. was, and S.M. was on the bed nude from the waist down. Appellant told McKee that he was disciplining S.M. The court also received a copy of the report to the prosecuting attorney, outlining statements made by S.M., H.A., appellant, and McKee. 2

On November 18, 2005, the circuit court filed an order terminating appellant’s parental rights. The court found by clear and convincing evidence that appellant sexually abused S.M. and H.A. and that it would be harmful for the children to have any further contact with him. It also specifically found S.M.’s testimony to be credible and appellant’s testimony to be not credible.

Standard of Review

An order terminating parental rights must be based upon a finding by clear and convincing evidence that termination of a parent’s rights is in the best interest of the children, considering the likelihood that the children will be adopted if the parent’s rights are terminated and the potential harm caused by returning the children to the custody of the parent. Ark. Code Ann. § 9-27-341(b)(3)(A) (Supp. 2005). The court must also find that termination is warranted pursuant to one of the grounds outlined in section 9-27-341(b)(3)(B). Here, DHS alleged the following three grounds:

(vi)(a) The court has found the juvenile dependent-neglected as a result of neglect or abuse that could endanger the life of the child, sexual abuse, or sexual exploitation, any of which was perpetrated by the juvenile’s parent or parents.

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Bluebook (online)
248 S.W.3d 498, 97 Ark. App. 277, 2007 Ark. App. LEXIS 52, Counsel Stack Legal Research, https://law.counselstack.com/opinion/albright-v-arkansas-department-of-human-services-arkctapp-2007.