Hambrick v. Arkansas Department of Human Services & Minor Children

2016 Ark. App. 458, 503 S.W.3d 134, 2016 Ark. App. LEXIS 491
CourtCourt of Appeals of Arkansas
DecidedOctober 5, 2016
DocketCV-16-333
StatusPublished
Cited by3 cases

This text of 2016 Ark. App. 458 (Hambrick v. Arkansas Department of Human Services & Minor Children) 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
Hambrick v. Arkansas Department of Human Services & Minor Children, 2016 Ark. App. 458, 503 S.W.3d 134, 2016 Ark. App. LEXIS 491 (Ark. Ct. App. 2016).

Opinion

BART F. YIRDEN, Judge

| Appellant Phillip Hambrick appeals from the White County Circuit Court’s adjudication of his three daughters as dependent-neglected as a result of their father’s sexual abuse of A.H. (DOB: 8-21-2012). Hambrick argues that the trial court erred (1) in determining that A.H.’s hearsay statements presented reasonable guarantees of trustworthiness, and (2) in finding that A.H. had been sexually abused. Hambrick also asserts that deference to the trial court is inappropriate under these circumstances. We affirm.

' I. Procedural History

On October 26, 2015, the Arkansas Department of Human Services (DHS) filed a petition for an ex parte emergency order alleging that A.H., G.H. (DOB: 1-27-2010), and R.H. (DOB: 5-11-2015) were dependent-neglected and at substantial risk of serious harm due to sexual abuse and parental unfitness. Attached to the petition was the affidavit of Darby Miller, , a DHS family service worker, stating that the Arkansas State Police was | investigating a report of sexual abuse against Hambrick involving A.H. Miller attested that A.H. had disclosed in á forensic interview that Hambrick had touched her vaginal area with his penis and mouth and that he had put his penis in her mouth. Miller further attested that A.H.’s older sister, G.H., had disclosed that someone had touched her vaginal area but would not identify the perpetrator.

The trial court granted DHS’s petition and ordered Hambrick to have’ no contact with his children. The children were permitted to remain in the custody of their mother. Subsequently, the -trial court entered an order finding that there was probable cause to continue the restraining order and scheduled an adjudication hearing.

II. Adjudication Hearing

Prior to the adjudication hearing, the trial court noted that the parties had stipulated that, for purposes of Rule 804 of the Arkansas Rules of Evidence, the children were unavailable to testify. Before ruling on whether to admit and consider hearsay statements, the trial court viewed a video of the children’s forensic interviews and heard testimony.

Kathy Helpenstill, a forensic interviewer with the Searcy Children’s Safety Center, testified that.she, interviewed both G.H. and. A.H. separately and had been provided with some background information about the allegations prior to the interviews. Helpenstill testified that she had been told that A;H. had been acting out sexually during naptime at daycare by putting toys and blocks in her underwear. She said that A.H.’s actions were “not typical at all of age appropriate behavior.” Hel-penstill was also told that G.H. had made “an outcry” the previous year at the same daycare by acting out sexually. Both children referred to their vaginal areas as their “boo-boos.”

IsG.H. was five years old at the time of the. interview. The following exchange occurred between Helpenstill and G.H.:

Q: .Tell me about your boo-boo.
A: I don’t want anyone touching it because I don’t want to tell you.
[[Image here]]
Q: What happens when somebody touches your boo-boo?
A: I don’t want to tell you.
[[Image here]]
Q: ... What will happen if you tell me?
A: I’m scared.
Q: What are you—tell me about being scared. What will happen if you tell?
A: I don’t know.
Q: You don’t know? Well, this is a safe place and you can say anything you want to here. Okay? And so, did you get a touch one time? Okay. And did it happen one time or more than one time?
A: More than one time.

When asked what had touched her “booboo,” whether more than one person had touched it, and whether the touching had involved an adult or another child, G.H. said that she did not want to talk about it. G.H. described Hambrick as a “safe” person whom she could tell if something bad happened to her, and she denied that he had done anything to make her sad or upset.

In her interview, then three-year-old A.H. said that she liked to touch her “booboo.” In pertinent part, A.H. said the following during her interview:

|4Q: ... Did Daddy touch your boo-boo one time or more than one time?
A: More than one time.
Q: What was Daddy doing when he touched your boo-boo?
A: Hey, this is—he just opened my mouth and he put a rock inside.
[[Image here]]
Q: ... When Daddy touched your booboo, what did he have on? What was he—what kind of clothes did he have on?
A: Naked.
Q: Daddy was naked?
A: Just like me.
[[Image here]]
Q: Is—is the rock on part of Daddy’s body? Come show me where a rock is.
A: In his boo-boo.
Q: Is that Daddy’s boo-boo? Okay. Where did Daddy put his boo-boo? In his mouth.
A: My mouth.
[[Image here]]
Q: Okay. Let me ask you this. I want to make sure I get this right. Daddy put his boo-boo where? On your mouth?
A: In my mouth.
Q: Did Daddy put his boo-boo anywhere else?
A: Yes.

A.H. told Helpenstill that if someone did something that made her sad or scared, she could tell “Daddy.” Yet, when asked whether she considered her father to be a “safe” ^person, A.H. responded that he was not and claimed that her father was a bad person because he had hit and beaten people.

Helpenstill continued with her testimony after the interviews had been played for the court. Helpenstill stated that it was “absolutely typical” for children to be reluctant to talk about this type of issue with her. Helpenstill further testified that A.H.’s interview was “age appropriate” for a three-year-old child. She stated that it was not unusual for A.H. to have given inconsistent statements and that, in fact, it was expected. Helpenstill said that she thought A.H. had given “quite a few credible statements.” Helpenstill was asked on cross-examination whether she had led A.H. by asking a question beginning with, “So when Daddy touches your boo-boo .... ” Helpenstill explained that, when A.H.

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Bluebook (online)
2016 Ark. App. 458, 503 S.W.3d 134, 2016 Ark. App. LEXIS 491, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hambrick-v-arkansas-department-of-human-services-minor-children-arkctapp-2016.