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Hambrick v. Arkansas Department of Human Services

Court of Appeals of Arkansas, Division II

October 5, 2016

PHILLIP HAMBRICK APPELLANT
v.
ARKANSAS DEPARTMENT OF HUMAN SERVICES AND MINOR CHILDREN APPELLEES

         APPEAL FROM THE WHITE COUNTY CIRCUIT COURT [NO. 73JV-15-223] HONORABLE ROBERT EDWARDS, JUDGE

          Jeff Rosenzweig, for appellant.

          Andrew Firth, Office of Chief Counsel, for appellee.

          Chrestman Group, PLLC, by: Keith L. Chrestman, attorney ad litem for minor child.

          BART F. VIRDEN, 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 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 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." 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."

         G.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. . . .
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 one time?
A: More than one time.

         When 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.

         In her interview, then three-year-old A.H. said that she liked to touch her "boo-boo." In pertinent part, A.H. said ...


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