Berthelot v. Arkansas Department of Human Services

413 S.W.3d 536, 2012 Ark. App. 249, 2012 WL 1193997, 2012 Ark. App. LEXIS 354
CourtCourt of Appeals of Arkansas
DecidedApril 11, 2012
DocketNo. CA 11-1244
StatusPublished

This text of 413 S.W.3d 536 (Berthelot 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
Berthelot v. Arkansas Department of Human Services, 413 S.W.3d 536, 2012 Ark. App. 249, 2012 WL 1193997, 2012 Ark. App. LEXIS 354 (Ark. Ct. App. 2012).

Opinion

DAVID M. GLOVER, Judge.

| Appellant Betty Berthelot appeals the trial court’s adjudication of her daughter, J.A., dependent/neglected as a result of sexual abuse. On appeal, she argues that the trial court erred in finding that DHS established sexual abuse by a preponderance of the evidence and that the trial court committed reversible error by allowing into evidence statements of hearsay contained in the report to the prosecuting attorney. We affirm the trial court’s decision.

Facts

The facts of this case are somewhat unusual. Berthelot is the maternal biological grandmother to J.A. (dob 4-14-03) and her three oldér siblings — sister Ja.A. (dob 12-29-95) and brothers Jo.A. (dob 1-2-97) and Jm.A. (dob 2-5-00). Berthelot adopted the sibling group in 2007 after the children’s biological mother and father’s parental rights were terminated in the state of Missouri. Nevertheless, at the time of J.A.’s removal from |gBerthelot’s home, the children’s biological mother, Christina Adams, and her boyfriend/fiancé, Steven Beasley, lived in the other side of the duplex occupied by Berthelot and the children, and it appears from the testimony that the children moved freely between the two units.

On June 6, 2011, DHS filed a petition for emergency custody and dependency/neglect with supporting affidavit against Ber-thelot, alleging that J.A. had reported that she had been sexually abused by her two brothers, Beasley, and maternal uncle Chris Wise; and it was necessary to remove J.A. from Berthelot’s custody to protect her health, safety, and physical well-being. The affidavit stated that Berthelot initially told investigators that she had walked in on J.A., Jo.A., Jm.A., and a nine-year-old female friend of the children unclothed, with the boys performing sexual acts on the girls, and she told them to stop; however, Berthelot later denied that the children were engaged in sexual acts, stating instead that the children were just “humping” on each other. Berthelot told investigators that J.A. “will make up stories,” and denied that either Jo.A. or Jm.A. would touch J.A. in a sexual way. Due to the sexual allegations, DHS took a seventy-two-hour emergency hold on J.A. on June 1, 2011, and was granted emergency custody on June 6, 2011. A probable-cause order was filed on June 13, 2011. An adjudication hearing was held, and an order adjudicating J.A. dependent/neglected was filed September 13, 2011. Berthe-lot filed a timely notice of appeal on September 30, 2011.

Due to scheduling conflicts, the adjudication hearing was held over several days. On the first day of the adjudication hearing, Suzanne Cartwright, a school counsel- or at J.A.’s ^elementary school, testified that on June 1, J.A. had been sent to her office to talk because her “private parts” hurt; J.A. told Cartwright that she played the “baby-humping game” with her brothers and it made her private parts hurt. She explained to Cartwright that the game was played by her brothers getting on top of her, kissing her, and rubbing their private parts on her. Cartwright said that J.A. only accused her brothers of playing this game with her.

Karis Chastain, an investigator with the Arkansas • State Police Crimes Against Children Division, testified that she interviewed J.A. at the Children’s Safety Center. That interview was recorded on a DVD, which both attorneys, but not the trial court, had seen and had no objection to it being placed into evidence. Chastain stated that she had not yet completed her investigation, but she did have a tentative finding that was pending approval. Due to the fact that Chastain’s investigation was not yet complete and the trial court had not had an opportunity to view the DVD, the hearing was continued. When the adjudication hearing was continued at a later date, Chastain continued her testimony, testifying that she found the allegations concerning sexual contact and sexual penetration with J.A. to be true for Jo.A., Jm.A., and Steven Beasley and that her report had been forwarded to the prosecuting attorney.

Angela Wood, a DHS family-service worker, testified that based upon J.A.’s allegations of sexual abuse by her brothers, her uncle, and her biological mother’s boyfriend, she had concern for other children in the home, but that Berthelot was very uncooperative with her. Wood stated that Berthelot was unable to formulate a plan to keep the children safe, that she did not believe a plan was needed because she did not believe that anything was happening |4in the home, and that J.A. was just making everything up. When Wood asked Berthelot about her walking into the room when the children were unclothed and performing sexual acts together, Berthelot denied saying that, stating instead that she had walked in on the children fully clothed, that they were “humping” each other, and that she told them to stop. Wood expressed concern that Berthelot believed that J.A. was just making up stories.

Tara Marcom, J.A.’s caseworker, testified that J.A. had several placements since coming into DHS custody and had to be removed from one placement for acting out sexually. However, she said that J.A. was currently in a placement in which she was doing very well. It was her recommendation that J.A. remain in DHS custody at the time.

Berthelot testified that J.A. had told her that her “pee-pee” hurt. She said that usually meant that J.A- had a urinary tract infection; that J.A. had those infections off and on for about three years; and that when she got an infection, she was given antibiotics. She said that J.A. had trouble with “storytelling,” crying wolf, and behavioral problems. Berthelot said that J.A. bit kids at school and raised her dress up in the air. She denied that J.A. had ever told anyone that she had been sexually abused; however, she also testified that J.A. had made previous accusations of sexual abuse against her older sister and that sister’s boyfriend, a little girl who lived across the street, and while in a previous foster-care situation — and that those allegations had been determined to be unfounded. She denied being uncooperative about instituting a safety plan. She also stated that she had not failed to protect J.A. because J.A. was never left at home with any males. However, she also testified that she walked into a bedroom and found Jo.A. lying on the bed on his side and J.A. was lying on the bed on her | fiback; both were clothed and Jo.A. was moving his bottom back and forth next to J.A. She said that she told them to stop. She stated that she had no idea about the “humping babies” game; that she had never heard J.A. use the language she used in the video; and that she had never heard her describe a sex event like she did in the video. Berthelot stated that she did not believe that Jm.A., Jo.A., or Steven had sex with J.A. because they did not have the opportunity; with regard to where J.A. learned about sexual vocabulary and issues that she spoke about on the video, Berthe-lot said that she must have heard people talk or that she saw things on television. Berthelot admitted that she was not present when J.A. was spending time at her biological mother’s house.

Jm.A. and Jo.A. were called to the witness stand, but the trial court invoked their right to remain silent and appointed both of them attorneys. Ja.A. stated that J.A. had accused her in the past of trying to rape her. Ja.A. said that she did not think J.A. was a truthful person and did not think that she was being truthful on the video. She said that J.A. had never told her about being sexually abused by anyone.

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Bluebook (online)
413 S.W.3d 536, 2012 Ark. App. 249, 2012 WL 1193997, 2012 Ark. App. LEXIS 354, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berthelot-v-arkansas-department-of-human-services-arkctapp-2012.