Ashcroft v. Arkansas Department of Human Services

374 S.W.3d 743, 2010 Ark. App. 244, 2010 Ark. App. LEXIS 231
CourtCourt of Appeals of Arkansas
DecidedMarch 10, 2010
DocketNo. CA 09-1115
StatusPublished
Cited by13 cases

This text of 374 S.W.3d 743 (Ashcroft 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
Ashcroft v. Arkansas Department of Human Services, 374 S.W.3d 743, 2010 Ark. App. 244, 2010 Ark. App. LEXIS 231 (Ark. Ct. App. 2010).

Opinion

COURTNEY HUDSON HENRY, Judge.

| T Appellant David Ashcroft appeals the adjudication order entered by the Pulaski County Circuit Court finding that his two children are dependent-neglected. For reversal, he argues that the trial court’s finding of dependency-neglect is clearly against the preponderance of the evidence and that the trial court erred in limiting cross-examination of his son, C.A. Appellant also contends that the trial court erred in denying his motion for a continuance. We find no merit in any of appellant’s arguments and affirm.1

Appellant and his wife, Teri Ashcroft, are the parents of two sons, C.A. and M.A., whom they adopted as infants. Both boys are eleven, but M.A. is slightly older. C.A. is shearing and speech impaired, and he attends the Arkansas School for the Deaf in Little Rock. On April 16, 2009, C.A. informed a teacher that appellant had touched him in an inappropriate manner. The teacher alerted the principal, who then summoned the school counselor. Following her conversation with C.A., the counselor placed a call to the child-abuse hotline. As a result, an investigator with the Crimes Against Children Division of the Arkansas State Police interviewed C.A. that afternoon at the school. C.A., through a sign-language interpreter, reported that appellant touched his private parts either while drying C.A. after a shower or while waking him in the mornings. C.A. also advised that he told his mother about appellant’s improper behavior.

That evening, personnel from the Arkansas Department of Human Services (DHS) visited the home to conduct a safety assessment. The employees learned that appellant was the children’s primary caretaker because Teri was ill with lupus. They placed a seventy-two-hour hold on the children because appellant, the alleged offender, was in the home and because they had concerns about Teri’s failure to protect C.A. and her apparent inability to care for the children. The trial court entered an emergency order removing the children from the home and later found probable cause for the children to remain in DHS custody.

The trial court scheduled the adjudication hearing for June 2, 2009. The hearing was not completed on that date, and the trial court continued the remainder of the hearing to June 10, 2009. The court heard the testimony of C.A.’s teacher, the school principal, and the counselor about the various disclosures that C.A. made to them about the alleged abuse. In |saddition, these witnesses related that C.A., a fifth-grader, was a good student who possessed average intelligence and who did not exhibit any behavioral problems. Also, the witnesses acknowledged that the school showed the students a film on the topic of “good touches” and “bad touches.”

Craig Taylor, who conducted the safety assessment of the home, testified that appellant provided for the boys’ everyday needs and that Teri appeared weak and used a cane due to her illness. Appellant was more fluent in sign language than either Teri or M.A., and consequently, appellant did most of the communicating with C.A. Taylor stated that Teri denied knowing anything about the abuse and that she said, if C.A. told her about it, she might have misunderstood because she was not adept at using sign language. Taylor testified that Teri displayed an accusatory attitude toward appellant during the visit and that Teri advised him that she and appellant “had not had a marriage in years.” Taylor opined that C.A. was old enough to dry himself without assistance after bathing.

Lakeshia Hendricks, the investigator with the state police, testified that she completed her investigation on May 14, 2009, and that she made a true finding substantiating the allegation of sexual abuse perpetrated by appellant. Hendricks did not substantiate a finding of neglect against Teri because of her limited ability to communicate with the child.

C.A. testified with the assistance of two interpreters, Laney Yates and Flint Fears. Prior to C.A.’s testimony, Yates informed the court that she was a full-time staff interpreter for the Administrative Office of the Courts and that she was certified by the Arkansas Supreme Court 14and by the Registry of Interpreters for the Deaf. She said that Fears was a deaf specialist and a native interpreter of American Sign Language. Yates testified that they worked together as a team and that this facilitated the interpretation process by having both a hearing and a deaf interpreter work in tandem.

C.A., who is five-feet, seven-inches tall and weighs 150 pounds, testified that appellant touched him inappropriately when appellant awakened him in the morning or while drying him after a shower. C.A. stated that the abuse happened three to five times between the years 2001 and 2009 and that two incidents took place in his bed and that two incidents occurred in the bathroom. C.A. testified that, on one occasion, appellant came into the bathroom and said that he wanted to help dry him. C.A. testified that appellant grabbed his buttocks in the process. C.A. said that, in April 2009, he was in bed when appellant touched his head, torso, hip, groin area, and “all over the front.” C.A. also said that appellant lightly touched his penis multiple times. C.A. stated that some of the touches were through his clothing but that others were not. He testified that the touches made him feel uncomfortable and that he had learned that he was not supposed to be touched in that manner. C.A. said that he told his father to stop. Finally, C.A. stated that he understood the gravity of the situation and that he was being “completely honest” with the court.

Appellant testified that C.A. was a heavy sleeper and that it was often difficult to wake him in the morning. Appellant described a routine in which he first attempts to awaken C.A. by turning the light switch on and off. He said that, if that does not wake C.A., he rubs C.A.’s Rhead. If C.A. still does not stir, appellant said that he pulls back the covers and scratches C.A.’s back, rubs his shoulders, and pats C.A. on his underwear-clad bottom. Appellant further testified that it was necessary for him to help C.A. with drying after a shower because C.A. would not dry himself completely. Appellant stated that he had never touched C.A. in a sexual manner. He surmised that C.A. wanted to live in the dorm at school and that C.A. accused him of abuse to fulfill that desire. Appellant also speculated that C.A. did not comprehend the difference between good touches and bad touches.

M.A. testified, as did Teri. M.A. stated that appellant had not touched him inappropriately, and he said that he did not believe C.A.’s allegation of abuse. Teri testified that C.A. never told her that appellant had touched him in a way that made him feel uncomfortable. She hoped that the allegation was not true but stated that, if she had to choose which one was being truthful, she would choose C.A. because appellant had lied to her about having an extramarital affair. The trial court also heard the testimony of two witnesses who vouched for appellant’s good character.

In the adjudication order, the trial court found that appellant touched C.A. inappropriately on his buttocks and penis. The court observed that C.A. was too large to be helped with drying. The court also found it relevant that C.A. and appellant were the same size and that appellant admitted that he helped C.A. with drying after a shower.

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Cite This Page — Counsel Stack

Bluebook (online)
374 S.W.3d 743, 2010 Ark. App. 244, 2010 Ark. App. LEXIS 231, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ashcroft-v-arkansas-department-of-human-services-arkctapp-2010.