FROM THE WHITE COUNTY CIRCUIT COURT [NO. 73JV-15-223]
HONORABLE ROBERT EDWARDS, JUDGE
Rosenzweig, for appellant.
Firth, Office of Chief Counsel, for appellee.
Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad
litem for minor child.
F. VIRDEN, Judge
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
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 a 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
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.
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.
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." Helpenstill 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."
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. . . .
Q: What happens when somebody touches your boo-boo?
A: I don't want to tell you. . . .
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
A: More than one time.
asked what had touched her "boo-boo, " 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.
interview, then three-year-old A.H. said that she liked to
touch her "boo-boo." In pertinent part, A.H. said